Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

The Tax Authority, Inc. v. Jackson Hewitt, Inc., 187 N.J. 4 (2006)

NJ Underlying Commercial Action

Student Contributor:  Melissa Goldberg

Facts: This is an appeal from the decision of the N.J. Superior Court enforcing a settlement agreement. Franchisees sued Jackson Hewiit for improperly retaining funds in a loan risk pool after delinquent loans had been paid.  A settlement agreement was reached between the attorneys for the franchisees and Jackson Hewitt, but certain of the franchisees refused to sign, and brought suit against their attorney for conducting an improper "aggregate settlement" by allocating settlement awards without prior settlement authority from each individual plaintiff for his or her award in violation of R.P.C. 1.8(g) which provides: 

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or no contest pleas, unless each client gives informed consent after a consultation that shall include disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

Issue: Did the attorney's decision to allocate a lump sum settlement offer amongst his clients, without previously obtaining a release from each individual client, constitute an aggregate settlement in violation of R.P.C. 1.8(g)?

Ruling: Yes, however, the Court held that its ruling would be applied prospectively.  The Supreme Court of New Jersey defined an aggregate settlement as one where an attorney negotiates a settlement for a group of claimants directly with the defendants and then allocates individual awards to each claimant. The Court held that no claimant should be bound without full disclosure and specific agreement. As such, where an attorney does wish to settle a multi-claimant matter in the aggregate, he must advise each claimant of the proposed settlement with the defendant, his proposed division of the proceeds, and obtain each claimant’s consent.

Given that this was the Supreme Court’s first opportunity to interpret R.P.C. 1.8(g), and that the franchisee’s counsel made a plausible, although incorrect, effort to have all franchisees agree to be bound by a majority vote, the Court deemed it fair to enforce the aggregate settlement against the franchisees and apply its holding prospectively.

Lesson: R.P.C 1.8(g) requires that an attorney entering into an "aggregate settlement" on behalf of his clients first advise each of his clients of (1) the lump sum offer by the defendant; (2) explain the allocation of that lump sum offer to the individual plaintiffs in the class action; and (3) obtain independent consent from each plaintiff for the aggregate settlement prior to finalizing the settlement and distributing the awards.

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Gorjuice Wrap, Inc. v. Okin, Hollander & De Luca, LLP, N.J. App. Div., January 12, 2011 (Unpub.)

Facts:  Kang retained Attorney Watkins to assist her in negotiating a commercial lease with the Talmos.  Unbeknownst to Kang, Watkins had been a longtime attorney for the Talmos.  In fact, he had represented them in their purchase of the property Kang now wanted to lease.  Kang relied on Watkins' advice that the property was suitable for her business purposes.  Further, Kang asked Watkins to petition the Planning Board to allow Plaintiff to commence its business operations. Watkins, however, failed to take action and Kang retained another attorney. 

Several months later, the Talmos, with the assistance of Watkins, sold a contiguous parking lot to another business.  As a result of this sale, the Planning Board determined that the available parking was insufficient to support Plaintiff's business.  

Moreover, Plaintiff learned of leaks and structural issues which the Talmos never fixed.  Apparently, Watkins had been aware of these concerns but never brought them to Kang's attention.  

After serious flooding damaged Plaintiff's property, Kang filed a claim with the insurance carrier for loss of business revenue and property damage.  Indeed, Kang later testified that the day of the flood was the last day Plaintiff was in business.  

In the meantime, Plaintiff had defaulted on its rent obligation and was locked out of the premises. Kang alleged that she was never provided the opportunity to remove valuable computer equipment, disks, books, and records.  At that point, Kang retained De Luca to secure the return of the personal property, and another firm to commence a malpractice action against Watkins.

According to De Luca, the Talmos notified him that they would allow Kang to enter the premises and gather her belongings in or around June 13, 2001.  Kang disputes that De Luca ever forwarded the message to her.  According to Kang, the new owners of the building allowed her to enter in or around November, 2001.  By that time, however, all of her property had allegedly been removed.  

In the meantime, Kang settled with the insurance carrier for $152,000 for "the whole loss and damage" caused by the flood.  She acknowledged that a portion of the payment was for "business loss."  

Plaintiff's action against Watkins alleged conflict of interest, failure to file an appropriate and timely site plan approval, failure to advise Plaintiff of its right and remedies against the Talmos, and other violations of the Rules of Professional Conduct.  Watkins' carrier settled the matter for $250,000.

Plaintiff then filed suit against De Luca for his failure to secure the removal of its property after the lockout.  In this regard, Plaintiff served damage reports claiming lost profits of approximately $8,000,000.

The trial court granted De Luca's motion for summary judgment and Plaintiff appealed.

Issue:  Did De Luca violate the applicable standard of care.  If so, could Plaintiff establish proximate cause and damages? 

Ruling:  De Luca violated the standard of care, but Plaintiff could not establish proximate cause and damages for lost profits.

In granting De Luca's motion for summary judgment, the trial court relied on Puder v. Buechel for the proposition that Plaintiff could not settle its case and then sue its attorney for an additional recovery. The Appellate Division held that the trial court's application of Puder was erroneous.  First, the Appellate Division noted that Plaintiff had not indicated that the settlements in the underlying matters were "fair" or "acceptable."  Moreover, De Luca was not involved in the underlying settlements.  The Appellate Division noted that "[n]othing in Puder prevents [Plaintiff] from asserting a malpractice action against De Luca that does not arise out of legal services provided in connection with the settlement of those prior matters."

The trial court also relied on "judicial estoppel" in granting De Luca's motion for summary judgment. The Appellate Division held that to be erroneous as well:

[T]he doctrine of judicial estoppel only applies when a court has accepted a party's position, a party ordinarily is not barred from taking an inconsistent position in successive litigation if the first action was concluded by a settlement.

Nevertheless, the Appellate Division granted De Luca's motion in part because Plaintiff could not establish proximate cause and damages.  The Appellate Division found that De Luca's failure to secure the return of the property had nothing to do with Plaintiffs' lost profits, since the business had been shut down even before the lockout.  Moreover, lost profits were not available as "damages" under the new business rule:

[A]lleged lost profits that are dependent on entry into unknown markets, or the success of a new and unproved enterprise, cannot be recovered because the business venture is so risky as to preclude recovery of lost profits in retrospect.

The Appellate Division reversed the trial court in part to allow a jury to determine when De Luca advised Kang that she could reenter the premises to retrieve any property left behind, and if he did not timely advise her, for a determination as to the value of the property lost.

Lesson: Puder's holding is not applicable to a malpractice suit commenced against an attorney where the attorney did not provide legal advise in related underlying settlements.  Further, showing a violation of the standard of care is not enough to win in a legal malpractice action.  Establishing proximate cause and damages are essential to recovery.  

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Strauss v. Fost, 209 N.J. Super. 490, 507 A.2d 1189 (App. Div. 1986)

NJ Underlying Personal Injury Suit

Student Contributor: Evan Kusnitz

Facts: Client’s insurance company retained Attorney to defend Client in a personal injury suit arising from a car accident. Attorney informed Client that if he wished to make a cross-claim for property damages, he must do so in this action. Client responded that he wanted Attorney to represent him for the cross-claim. Attorney then wrote to Client twice in order to discuss his fees. Client did not respond until after the second letter, stating that he had made other arrangements in order to collect property damages. However, Attorney had already filed the cross-claim. Although Client informed Attorney of his decision to pursue other methods of collecting his property damages, Attorney did not inform the court or opposing counsel that he no longer represented Client in the cross-claim. More importantly, he did not inform Client of the pending motion that he had filed, did not send him the relevant papers, and did not inform Client of the court’s dismissal of the cross-claim. Attorney only explained to Client the entire situation after he later found out that Client had not yet collected property damages and was waiting until after the trial to file a claim.

Issue: Does an attorney who is representing a client for one matter owe any duty to the client regarding another claim after the client rejects representation for that claim?

Ruling: An attorney must protect a client’s interests even after the client has rejected representation for a certain claim. See N.J. R.P.C. 1.16(d). Thus, an attorney is negligent as a matter of law when he

1) fails to inform a client who has rejected his representation of the dismissal of the client’s claim; and

2) fails to inform the court and opposing counsel that he longer represents a client in a matter.

Lesson:

1) An attorney who has already initiated a claim on behalf of a client may not abandon that client when he rejects the attorney’s representation. The attorney must notify the client, the court and opposing counsel, in order to protect the client’s interests. See N.J. R.P.C. 1.16(d).

2) As the court here noted, an attorney can avoid these problems if he meets with the client in person from the outset!

NOTE: The court modified this case with regard to the amount of damages. Strauss v. Fost, 213 N.J. Super. 239, 517 A.2d 143 (App. Div. 1986). 

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Nason v. Fisher, 36 A.D.3d 486; 828 N.Y.S.2d 51 (2007)

NY: Underlying Commercial Transaction

Student Contributor: Colleen Gaedcke

Facts: The plaintiff retained the defendant attorneys based on one of the defendant attorneys representation that he was experienced in handling commercial partnership cases. The plaintiff brought a cause of action against the defendant for false representation in violation of NY Judiciary Law section 487, but the court dismissed the action for the plaintiff’s failure to establish the statutory requirement of “chronic and extreme pattern of legal delinquency.” Additionally, the plaintiff also brought a legal malpractice claim against the defendants. The plaintiff’s claimed that the defendant’s alleged violation of Disciplinary Rules are evidence of malpractice.

Issue: Whether the court properly granted the defendant’s motion for summary judgment, dismissing the legal malpractice claim?

Ruling: Yes.

Lesson: Allegations of violations of Disciplinary Rules may be evidence of malpractice, however such a violation alone will not establish that the attorney’s conduct was the “but for” cause of the plaintiff’s loss.

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Flaherty-Wiebel v. Morris, Downing & Sherred, Court of Appeals, Third Circuit, June 10, 2010

Facts:  At the request of their client, Wiebel (Plaintiff's former husband), the Defendant attorneys drafted a pre-nuptial agreement.  Plaintiff was advised that Defendant attorneys had drafted the agreement on behalf of Wiebel.  Plaintiff was represented by separate counsel during the negotiation of the agreement.

The agreement provided that Plaintiff owned 49% of a certain entity ("Entity") and Wiebel owned 51%.  In actuality, Wiebel owned 99% and his son owned the remaining 1%.  Upon the execution of the pre-nuptial agreement, Plaintiff married Wiebel. 

Approximately four years later, Wiebel filed for divorce.  Plaintiff subsequently brought this litigation, alleging (1) that the Defendant attorneys' misrepresentations in the pre-nuptial agreement concerning her ownership interest in the Entity disadvantaged her in the negotiation of her property settlement agreement, and (2) that the attorneys' allegedly breached certain Rules of Professional Conduct.

Issue:  Does a violation of the Rules of Professional Conduct constitute legal malpractice?  What is the extent of an attorney's duty to a non-client? 

Ruling:  The Court affirmed the New Jersey Supreme Court's holding in Baxt v. Liloia, 714 A.2d 271 (1998), and held that a violation of the Rules of Professional Conduct cannot sustain a cause of action for legal malpractice: 

New Jersey does not recognize an independent cause of action for the violation of the Rules of Professional Conduct, but violations of these rules may be used to support a claim of legal malpractice.  New Jersey courts have defined legal malpractice as negligence relating to an attorney's representation of a client.

Accordingly, the Court held that it was necessary for Plaintiff to establish that she was the Defendant attorneys' client.  Plaintiff could not do so and argued that Defendants owed her a limited duty under Petrillo v. Bachenberg, 655 A.2d 1354 (N.J. 1995). 

In Petrillo, the Court held that an attorney representing the seller of property had a duty not to provide misleading information regarding the property to potential buyers who the attorney knew, or should have known, would rely on the information.  In order to determine whether the duty applied here, the Court first ascertained the purpose of the document.  The Court concluded that the attorneys had drafted the pre-nuptial agreement to memorialize the parties' agreement, not to induce either party to enter into the agreement.  Accordingly, the Court held that Petrillo did not apply:

[A]n attorney who puts into writing an agreement between two parties does not vouch for the representations either party has made to the other. The attorney only puts into writing the representations that the parties intend to make to each other. The act of drafting does not make the attorney responsible for the accuracy of the statements placed on paper.

Lesson:  A violation of the Rules of Professional Conduct, in and of itself, cannot serve as a basis for a malpractice action.  An attorney, by undertaking the task of setting forth the understanding of two individuals in a writing, does not owe non-clients the duty to verify the accuracy of a party's representations therein.

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Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241; 602 A.2d 1277 (Pa., 1992)

PA Underlying Legal Ethics Matter

Student Contributor: Lisa Larato

Facts: This legal malpractice action was commenced by the Plaintiff, Maritrans GP, Inc., former clients of the Defendant law firm, due to the law firm’s representation of the Plaintiffs’ competitors, entities whose interests were found to be adverse to the interests of Plaintiffs, in matters substantially related to matters in which they had represented Plaintiffs. The Court of Common Pleas granted the Plaintiffs injunctive relief and enjoined the Defendants from representing the Plaintiffs’ competitors. The Superior Court reversed the injunction order, given that it was based on nothing more than the Defendants’ alleged violation of Pennsylvania’s Rules of Professional Conduct (1.7, 1.9) which, in and of itself, cannot be the basis for a cause of action in legal malpractice. Plaintiffs’ appealed the Superior Court’s reversal.

Issue: Did the Defendants’ conduct give rise to a claim for legal malpractice?

Ruling:

1) [Defendant] attorneys’ representation of subsequent clients whose interests were materially adverse to former client in matter substantially related to matters in which [they] represented the former client was an impermissible conflict of interest actionable at law, independent of any violation of the code of professional responsibility; (2) injunctive relief would lie to prevent [the] attorneys from breaching fiduciary duties toward [their] former client by representing its competitors; and (3) grant of preliminary injunction was not an abuse of discretion, given law firm's extensive involvement in its former client's affairs and its extensive knowledge of sensitive client information.

Lesson: The Court will intervene to prevent imminent harm to a former client by an attorney’s breach of his or her fiduciary duty, irrespective of the fact that the breach may constitute a violation of nothing more than state professional ethics guidelines. 

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Profit Sharing Trust for Marprowear Corporation v. Lampf, Lipkind, Prupis, Petigrow & Labue
267 N.J. Super. 174, 630 A.2d 1191 (1993)

NJ Underlying Investment Transaction

Student Contributor: Natalie Resto

Facts: A law firm asked a long term client  if it would be interested in investing money in an insurance group. Without advice from independent legal counsel, the client invested $449,600 in the insurance group relying on the assurance of the firm's attonreys. The law firm, however, did not reveal either in writing or verbally the fact that attorneys of the law firm were directors of the insurance group or that the law firm also represented the insurance group. The insurance group eventually filed for bankruptcy.
Later, the law firm sued the client   for unpaid legal fees. Client counterclaimed for legal malpractice claiming that it would not have made the investment if they had been provided the notices that were required under R.P.C. 1.8, and advised that the losses were foreseeable at the time of investment. The law firm argued that it did not proximately cause the damages sought.

Issue: Was the law firm’s negligence the proximate cause of the plaintiff’s damages?

Ruling: The court found that the law firm’s failure to inform Marprowear and the Trust of its relationship with the insurance group directly caused Manprowear and the Trust to invest. The court held that a reasonable jury could find, as the jury did, that the law firm’s failure to disclose its relationship was the legal and proximate cause of the injury.

Lesson: R.P.C 1.8(a) states that a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel of the client’s choice concerning the transaction; and
(3) the client gives signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Editor's Note:  Here the Court was particularly upset that the law firm used the confidential information of the client's financial well being to target it as a potential investor.

 If proximate cause is ultimately a question of fairness and policy, imposing liability on these facts is both fair and good policy. Lawyers who fail to inform clients of their own interests, fail to advise clients to seek other counsel, unabashedly sell their clients the notion that an investment with them or their colleagues is a good and safe one, and use their clients as sources of investment funds, must accept responsibility for the outcome. Lawyers may not burrow their way into their clients' confidences and then exploit those confidences for their own ends. This is the law in New Jersey.

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Fraser v. Bovino, 317 N.J.Super. 23 (App. Div. 1998)

Student Contributor: Lisa Larato

NJ Underlying Real Estate/Land Use Transaction

Facts: A deal for the sale of land fell through due to delays caused by challenges to the municipal approval of a condominium project. The real estate agent (Fraser) and the landowners (Genlaws) brought an action against the adjoining landowner (Defendant Bovino) who objected to the condominium project, his attorney, and others involved in ruining the deal. Fraser asserts that Bovino’s attorney (Allen) committed malpractice and acted unethically. The Genlaws also filed a claim against their attorneys Martini and Blessing who had been retained to prosecute their action against Bovino and his attorney.

The only claims still viable for the Genlaws were those which fell under the six year statute of limitations. It was undisputed that the attorneys returned the Genlaws’ file to them a few weeks before this statute of limitations expired, on January 28, 1997. The complaint, however, was not filed until April 25, 1997.

The Superior Court, Law Division, granted summary judgment to certain defendants in both actions. Appeals were filed and consolidated.

Issues: (1) Is Bovino’s attorney liable to the real estate agent, Fraser, for legal malpractice? (2) Are Martini and Blessing liable to the Genlaws for failure to file a timely complaint?

Ruling: (1) Bovino’s attorney (Allen), representing an individual who contested the proposed land use application, did not owe Fraser, the broker, even a limited duty of care. (2) Since Martini and Blessing returned the Genlaws’ file to them several weeks before the statute of limitations on their claims expired, their withdrawal from representation did not adversely affect the clients’ interests so as to warrant liability.

Lesson:

• Allen, who was not Fraser’s attorney, but the attorney of his adversary, did not owe Fraser any level of a duty of care so as to make him liable to Fraser under a professional malpractice claim.
• Under New Jersey Rule of Professional Conduct 1.16, Martini and Blessing did not commit malpractice because they (1) did not wait for the statute of limitations to run before withdrawing, and (2) left enough time for the Genlaws to file their complaint within the statute of limitations. That the Genlaws failed to timely file their complaint, was entirely their own negligence, and bore no relation to the decision of Martini and Blessing to withdraw as counsel in a timely manner.

Editor's Note: In  all cases, make sure that before withdrawing, there is a reasonable amount of time left for the client to get substitue counsel to file a complaint before the statute of limitations runs. If it's getting close, consider a pro se complaint for the client thus giving the client even more time to get new counsel and thereby preventing the client's claim from becoming time barred. Do what is reasonable to help the client preserve their cause of action if you're not going to continue with representation, at least until they get new counsel.

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Baxt v. Liloia, 155 N.J.190 (1998)

Student Contributor: Ryan O’Donnell

NJ Underlying Commercial Action

Facts: Plaintiffs, who were previously defendants in a foreclosure action, filed a complaint against the attorneys who represented the mortgage bank. Plaintiffs sought damages for a breach of the Rules of Professional Conduct, alleging that the bank’s attorneys actively mislead plaintiffs during the pendency of the foreclosure proceedings.

Issue: Can a violation of the Rules of Professional Conduct alone serve as the basis for a cause of action in legal malpractice?

Ruling: No.

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached…Consonant with the intent of the ABA, no New Jersey case has allowed a cause of action based solely on a violation of the RPCs….Moreover, our research has found no case in any other jurisdiction permitting the RPCs to be used in this manner…[S]tate disciplinary codes are not designed to establish standards for civil liability but, rather, to provide standards of professional conduct by which lawyers may be disciplined…[Various rules] are framed as precatory guidelines…Many of the disciplinary rules are aspirational in nature and therefore, particularly unsuitable for use outside of the disciplinary system.

* * *

While violations of ethical standards do not per se give rise to tortious claims, the standards set the minimum level of competency which must be displayed by all attorneys.   Where an attorney fails to meet the minimum standard of competence governing the profession, such failure can be considered evidence of malpractice.

Lesson: A cause of action for legal malpractice cannot be premised solely on an attorney’s alleged breach of a Rule of Professional Conduct. But violation of an RPC can nonetheless be some evidence of a departure from the applicable standard of care.

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Estate of Spencer v. Gavin, 400 N.J. Super 220, 946 A.2d 1051 (App Div. 2008)

NJ Underlying Wills, Trusts & Estates.

Facts: Gavin and Averna, had their law offices in the same building and frequently worked on cases together. Gavin, was executor of Spencer's will and he hired Averna to establish a charitable foundation pursuant to the will. Spencer's beneficiaries later sued Gavin for embezzling money from the estate, and Averna for failing to blow the whistle on Gavin since he could have prevented the thefts.

Issue: What was Averna's duty to the Estate?

Ruling: The trial court dismissed the complaint as to Averna. The Appellate Division reversed and remanded, holding that Averna had a duty to Spencer based on these factors:

1. Averna and Spencer had an attorney-client relationship. Averna worked only on the charitable foundation, but it was formed at the direction of Spencer's will. In addition, (a) the estate paid Averna; (b) the estate benefited from his work and (c) Averna did not limit the scope of his representation to the foundation.
2. Averna's close and ongoing working relationship with Gavin gives rise to Averna's duty to report Gavin's misdeeds. There was no de facto partnership between them because they did not exercise "joint control over a common business" nor was there a "community of interest in the profits or losses." But they had worked closely on 10 to 15 cases.
3. RPC 8.3 (a) provides: "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority."

Lesson: A lawyer to whom work is referred by another attorney and who has a close working relationship with that referring attorney has a duty to report the referring attorney if he or she actually knows that the referring attorney has been misappropriating funds from the client. Failure to do so can be a departure from the standard of care, and can lead  to malpractice liability to the client. It can also be  an ethics violation for failure to "rat" on the referrer.

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Gilles v. Wiley, Malehorn & Sirota,
345 N.J. Super. 119, 783 A.2d 756 (N.J.Super.A.D., 2001)

NJ Underlying case: Litigation; Medical Malpractice

Student Contributor: Geri Mulligan

Facts: Lawyer represents plaintiff in a medical malpractice case. Six months after getting a favorable expert witness report, lawyer writes to client that his firm has reconsidered and will not file suit. Lawyer suggests client immediately find a new lawyer and even recommends others who might take the case. Lawyer also stated that client had two years from the malpractice incident to file suit and failure to do so would forfeit client's right to sue. By the time plaintiff met with a new lawyer the statute of limitations had run.

Issue: How long does the lawyer's duty to the client last even after the attorney-client relationship has come to an end?

Ruling: The trial court dismissed the complaint against lawyer. The Appellate Division reversed, holding that lawyer breached his duty of care based on these factors:

1. There was an established lawyer-client relationship. Lawyers had to protect the client's cause of action. Therefore, lawyer's termination of the relationship so close to the expiration of the statute of limitations, without preserving client's cause of action is a breach of duty.
2. RPC 1.16 (b) provides that "where the conduct of the client does not justify the attorney's withdrawal, the attorney may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client." RPC 1.16 (d) further provides: "upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest." 
3. Lawyer had the information necessary to file a complaint six months before withdrawing from the case at which point he could have made the determination of whether to continue representation.
4. Although the letter discontinuing representation mentioned the two-year statute of limitations and advised client to obtain new counsel, it failed to provide the date that the statute began to run. Also, the time between termination and expiration of the statute was too short to find new counsel to thoroughly review the case and go forward with filing a complaint.

A lawyer who agrees to represent a client has to preserve the client's cause of action. If the lawyer terminates the representation he must do so in a timely fashion so the cause of action won't become time-barred.

Editor's Note: What could the lawyer have done to preserve the cause of action under these circumstances? 1) With client's consent, file the complaint to stop the statute of limitations and then farm the case out to another lawyer who will substitute into the case. Having done the investigation, gotten a favorable expert report and then filed the complaint will entitle the lawyer to get a fee from substitute counsel; (2) file the complaint pro se for the client and then help client arrange to secure new counsel. After filing pro se Complaint make sure it is timely and properly served.

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