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:
- 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.
- 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."
- 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.
- 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.