Is It Legal Malpractice to Withdraw As Attorney?
Money disputes between clients and attorneys are a rich source of litigation. This is likely due to the low entry costs for attorneys to sue their clients, and the fact that clients are really relegated to the closed purse method of dealing with uncooperative attorneys. Hence the stage is set for a large body of law on the issue.
In Brady v Freidlander 2013 NY Slip Op 31238(U) June 7, 2013 Sup Ct, NY County Docket Number: 156825/2012, Judge Eileen A. Rakower takes on several of the most pressing questions. Is it permissible to threaten to leave if not paid, is it legal malpractice to get out of the case, and is it a violation of Judiciary Law 487 to tell the court that you want to quit because of differences in strategy when there is a fee dispute too?
"As alleged in the Complaint, on September 1 0, 2009, represented by Defendant, Plaintiffs were ready to proceed to trial in the Civil Court matters, but the matter was adjourned until September 30,2009. Defendant moved to be relieved as Plaintiffs' counsel. On September 30,2009, Defendant's motion was heard before the Honorable Debra Rose Samuels, Plaintiffs opposed, and the Court granted Defendant's motion. The Complaint alleges that "Defendant intentionally and maliciously misrepresented to the Plaintiffs and to the Court that he was withdrawing
from the representation of plaintiffs because of conflicts involving trial strategy when in fact the defendant's sole concern [was] that his future legal bills would not be paid."
""An attorney with just cause may withdraw from a case and may recover for his services rendered." In the Matter o/the ME. v. s.G., 124 Misc. 2d 851,851 (N.Y. County 1984). Furthermore, "An attorney may be permitted to withdrawn from employment where a client refuses to pay reasonable legal fees." Weiss v. Spitzer, 46 A.D. 3d 675 [2d Dept 1987]). It is well established that an attorney's alleged threat to cease representing a client unless the attorney is paid does not constitute duress. See Levitt v. Brooks, 102 A.D. 3d 547 [1 SI Dept 2013] (a lawyer's threat to cease rendering services unless paid does not constitute coercion); Duane Morris LLP v. Astor Holdings, Inc., 61 A.D. 3d 418 [1 st Dept 2009]; Fred Ehrlich, P. C. v. Tullo, 274 A.D. 2d 303 [1 st Dept 2000]
("[P]laintiff's 'threats' to cease representing defendants unless he were paid were not wrongful. The threatened exercise of a legal right is not economic duress.")"
"Plaintiffs allege that Defendant deceived the Court when he moved in open court to withdraw as their counsel on the basis that plaintiff James Brady questioned strategy and lacked trust in Defendant's representation "when in fact the real reason for withdrawal was the Defendant's concern that Plaintiffs could or would not pay defendant's future legal bills." However, Plaintiffs had the opportunity to raise these issues when opposing Defendant's motion to be relieved of counsel, and after considering Plaintiff's opposition, Judge Samuels permitted Defendant to be relieved
of counsel. Plaintiffs did not thereafter appeal Judge Samuels' decision on that point. Furthermore, even if Plaintiffs' allegations are true and Defendant was seeking to withdraw based on Plaintiffs' failure to pay legal fees, an attorney may be permitted to seek withdrawal on this ground. Thus, the conclusion that Defendant acted "with intent to deceive the court or any party" is without factual support. "
"The Complaint fails to allege facts sufficient to show that "but for" Defendant's negligence, Plaintiffs would have prevailed in the underlying action. Here, while the Complaint states that
"Plaintiff would have won the trial in the Civil Court based on defendants of Constructive Eviction and breach of warranty ... had the defendant not abandoned representation and provided adequate advice concerning the surrender of the possession issue of the Yellowstone injunction ... and Plaintiffs would not have lost their [commercial spaces]", these allegations are conclusory and without factual support. Rather, based on the Complaint, after Defendant was relieved of counsel,
Plaintiffs were provided with time to obtain new counsel, and the default entered against the corporate plaintiffs was based on their failure to do so, and that default has now been reversed.
Plaintiffs' fourth cause of action alleges misrepresentation. The Complaint alleges that "Defendant intentionally and maliciously misrepresented to the Plaintiffs and to the Court that he was withdrawing from the representation of plaintiffs because of conflicts involving trial strategy when in fact the defendant's sole concern [was] that his future legal bills would not be paid." Here, in light of the fact that Defendant moved in open court to be relieved as counsel, Plaintiffs opposed, Judge Samuels' granted Defendant's motion, and Plaintiffs' did not appeal that order on that issue, the
issue was previously litigated and cannot be relitigated here. "