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

Wilkins v. Safran, 185 N.C.App. 668, 649 S.E.2d 658 (2007)

NC: Underlying Construction Litigation

Student Contributor: Vanessa L. Wachira

Facts: After Rennie L. Wilkins (“Client”) was named as a defendant in a construction lawsuit in 1998, he retained the services of Perry Safran (“Attorney”). Over the next five years, Attorney represented Client in connection with this litigation. In February of 2003, Attorney suffered a heart attack. In April, Attorney submitted a letter to the court seeking to schedule litigation of the construction action for September 22, 2003. During the month of July, several lawyers who had been assisting Attorney in his representation of Client, including the associate who had been in charge of Client’s case, resigned from his firm. Believing his poor health would not allow him to continue alone in the representation of Client, Attorney served Client with a motion to withdraw on July 31. Attorney’s motion was granted by an order of the court, which was served on Client on August 4. Client retained new counsel who promptly submitted a motion for continuance of the September 22 trial and a motion to have Attorney’s withdrawal set aside. The court denied both motions, but ordered them eligible for reconsideration on the day of trial. Prior to trial, however, Client and new counsel settled the construction suit by agreeing to pay $22,500 in exchange for a dismissal of the suit with prejudice. Client commenced a malpractice action against Attorney asserting claims for negligence, breach of fiduciary duty, constructive fraud, and punitive damages.

Issue: Did Attorney’s conduct violate the standard of care with regard to the requirement to give reasonable notice to the client and to allow client to retain new counsel?

Ruling: No. Attorney’s conduct complied with the states Rules of Professional Conduct and thus, did not violate the standard of care due to Client. Rule 1.16(a)(2) states that an attorney “shall withdraw from the representation of a client if: the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client[.]” Here, by seeking to withdraw after suffering from a heart attack, Attorney’s actions complied with the rule. Additionally, Attorney filed his motion for withdraw more than seven weeks prior to the scheduled trial—a time frame deemed reasonable by the court. Client had no claim for constructive fraud because there was no evidence to suggest that Attorney gained a personal benefit by withdrawing.
In NC, punitive damages, which are intended “to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts,” may be assessed only when an attorney is guilty of fraud, malice, or willful or wanton conduct. Suffering from poor health does not fall into any of these categories.

Lesson: Although attorneys may be held liable for many things, having to withdraw from a case after suffering from a heart attack isn’t one of them.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Vang Lee v Mansour, 104 Ark. App. 91 (2008)

AR: Underlying litigation

Student Contributor: Meghan Jean

Facts:  Mansour was one of two attorneys client Vang Lee hired to represent him in a lawsuit. When Attorney #2 (also named Lee)  left for a month-long vacation, he left instruction for Mansour to schedule a pretrial conference between the parties of the suit. Soon afterwards, Attorney #2 became unresponsive to any attempts Mansour made at communication. After several failed attempts, Mansour sent two letters to Attorney #2 informing him that if he did not hear from him, he would have no choice but to request withdrawal from the case. Mansour did not copy Client Lee either letter. When Attorney #2 failed to respond, Mansour requested withdrawal indicating that he and Client Lee did not communicate, that Client Lee would not be prejudiced by his removal because Attorney #2 spoke Client Lee’s native language, and that Attorney #2  was in possession of all necessary paperwork for the case. The court granted the withdrawal. Unfortunately, because Mansour did not inform Client Lee of the withdrawal or Attorney #2's  lack of communication, Client Lee failed to appear at the pretrial conference and a judgment was entered  against him.

Issue: Whether a court’s granting of an attorney’s request for withdrawal from a case precludes the attorney from a malpractice suit on that basis.

Ruling: No.   Arkansas Rule of Civil Procedure 64 provides that an attorney, in his desire to withdraw from a case, must take steps to avoid any foreseeable prejudice to his client, including giving due notice to his client, allowing time for employment of other counsel, and has tendered or stands ready to tender any client papers and unearned fees. Mansour’s failure to communicate the date of the pre-trial conference, and his knowledge that Attorney Lee had become unresponsive to any communication was a foreseeable prejudice to Client Lee. Mansour took no steps to avoid such prejudice.

Lesson: In choosing to withdraw from a case, an attorney must be certain to provide to the client all proof of notification and communicate all issues that might impede or prejudice his case, including that of an unresponsive co-counsel, thereby allowing the client a chance to mitigate his or her damage caused by Attorney #2. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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). 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (10)
• Trackbacks
• Share Link