Legal Malpractice has become so complicated that
you need an expert to help figure it out.

NC: Still Some Justice Yet: Heart Attacks Provide Adequate Basis for Negligent-Free Withdrawal

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.

Tagged with: ,

Posted in: North Carolina