Fired but Still on the Hook
Most attorneys don’t end their careers in the same place they started. Rather, many attorneys make a move or two which may require the transfer of files and clients. When an attorney transfers a file to a new firm, the prior firm must maintain certain ethical obligations. Model RPC 1.16 provides that a lawyer must provide notice when terminating a representation and take steps to the extent reasonably practicable to protect a client’s interests. Therefore, professional obligations are not always terminated as soon as the client ends the relationship. The following example demonstrates how failure to timely withdraw from a case after the attorney-client relationship ended resulted in a claim of malpractice.
The underlying suit stemmed from a contract action brought by a condo association against its developer. The condo association was represented by attorney “A” with the law firm “Firm.” When A failed to appear at two case management conferences the court dismissed the suit for want of prosecution.
A subsequently left Firm and joined “New Firm.” The condo association then entered into a written agreement with New Firm to represent it in the contract action. After New Firm was retained, the condo association sent a letter to Firm to transfer the file to New Firm. Additionally, the letter stated “please let this correspondence formally terminate the prior retention agreement” between the condo association and Firm. After the file was transferred to New Firm, neither A nor New Firm filed an appearance for the condo association or moved to substitute their appearance for that of Firm. As a result, the dismissal for want of prosecution went unchallenged.
The condo association subsequently filed a malpractice action against A, Firm and New Firm. With respect to its claim against Firm, the association alleged that had the firm investigated the status of the suit at any time during the relevant year it would have discovered the dismissal. Furthermore, after the file was transferred, Firm never took any steps to effect the transfer such as filing a motion for leave to withdraw its appearance or substitute New Firm as the association’s new firm. The association alleged that if Firm had taken such actions it would have learned of the dismissal and could have notified the association so that it could take the appropriate action for reinstatement.
Firm sought to dismiss the suit on the grounds that the condo association could not prove that Firm proximately caused its injuries. The motion to dismiss was denied and affirmed on appeal. The court found that Firm “did not cease to be attorney of record at the time it was discharged by its client, since it failed to properly file a motion to withdraw as attorney of record.” Accordingly, any negligence on the part of Firm for failure to investigate the status of the case and advise its client was not superseded by the association’s termination letter to Firm and retention of new counsel.
Attorney’s should be familiar with the local rules of their jurisdiction regarding how to properly effect withdraw of counsel. When an attorney departs his firm and takes matters with him, the firm needs to ensure that the firm promptly takes whatever steps necessary to notify the court that the firm is no longer representing the client. A few simple steps could protect the firm in the long run from potential exposure due to the former attorney’s negligence.