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Vicarious Liability: The "Of Counsel" Relationship

Staron v. Weinstein, 305 N.J. Super. 236 (App. Div. 1997).

Student Contributor:  Daniel Schick

NJ Underlying Personal Injury Action

Facts:  Staron was allegedly injured in an auto accident in October, 1985 and retained Weinstein to represent her in the pursuit of her personal injury claims.  The parties signed an "An Agreement to Provide Legal Services", the first page of which referred to "Sheldon G. Weinstein, Esq." as the "law firm" being retained.  The next page of the Agreement, however, listed "Robert C. Thelander, Esq.".  Weinstein further submitted a request for Personal Injury Protection benefits on Thelander’s stationery with Weinstein listed as "Of Counsel".  Thelander disassociated himself from Weinstein’s practice in September, 1986.  Weinstein continued to represent Staron through 1989, but never timely filed a Complaint with regard to her personal injury claims.

Several years later, Plaintiff bought a suit for legal malpractice against Weinstein and Thelander.

Issue:  Did Thelander owe any duty to Staron? 

Ruling:  Yes.

In the context of a motion for summary judgment, plaintiffs made a sufficient showing that Thelander’s firm became counsel for plaintiffs by virtue of both the retainer agreement and the fact that defendant had at least apparent authority to enter into such agreements on behalf of the firm…Having become counsel for plaintiffs, it was the responsibility of the Thelander firm to either terminate the representation or give notice that it was terminated by virtue of Weinstein’s departure.

In reaching its holding, the Court further noted that Thelander’s role in Weinstein’s cases and his entitlement to a share of the proceeds of any recovery obtained by Weinstein was not clear.  Moreover, it was not know what, if any, control mechanisms Thelander had in place to determine in what matters Weinstein had been retained in his capacity as "Of Counsel" to his firm. 

Lesson:  A law firm and its principals are ordinarily liable for wrongful acts and omissions of lawyers who have an "Of Counsel" relationship with the firm.  The scope of liability for acts of an "Of Counsel" lawyer may be affected by the terms of the Of Counsel relationship and the extent of the lawyer’s affiliation to the firm apparent to the lawyer’s clients.

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Posted in: Disengagement, Engagement, New Jersey, Vicarious Liability