Lundberg v. Backman, 11 Utah 2d 330 (1961).
Student Contributor: Manju Sunny
Facts: Plaintiff alleges that her former attorney was negligent by failing to file a motion for a new trial within the time prescribed by law. She further alleges that she relied upon her attorney to do this and his failure to do so caused her to lose her opportunity to have the trial court reverse its prior decision. Defendant responds that the parties never entered into an agreement with regard to appeals. To the contrary, he states that he advised his former client that he would not represent her on any appeal. This, despite the fact that he did not formally withdraw as her attorney until after the time for appeal had run.
Issue: What, if anything, did the attorney do wrong?
As a general rule, implied authority of an attorney ends with the entry of a final judgment in the trial court. While there are some exceptions to this rule, it has been held that an attorney will not be held liable for failure to take proceedings for the review of a case unless he has been directed to do so, and he has agreed to and accepted that duty.
In this case, there was no agreement by the attorney to represent the client on an appeal of her case. Consequently, the fact that the attorney did not formally withdraw until after the time to file an appeal had run was of no significance. In fact, the relationship between the attorney and the client terminated upon entry of the final judgment.
Lesson: In Utah, attorneys appear to be under no obligation to bring an appeal on behalf of a client unless there is an agreement that they have agreed to and accepted such a duty. Nevertheless, the safest option would be to spell out in the retainer agreement and/or a timely disengagement letter that the attorney client relationship will end upon entry of a final judgment to avoid the possibility of confusion.