In Scher v. Mishkit [NYLJ exerpt], Supreme Court, Suffolk County refused to allow this attorney to wifhdraw pursuant to CPLR 321. This situation is more common than one might guess, especially in medical malpractice cases. The case is brought, and prosecuted, with depositions, and medical record exchanges, and then placed on the calendar, without an expert in place.
Not unexpectedly, time goes by, and the case starts to be near the top of the list for jury selection, and defendants have not offered to settle. Plaintiff’s attorney still has no expert, and it starts to look like they may simply have worked this case up on the assumption [hope] that defendants would settle…and now they have a problem.
That’s what this case seems to be about. "PLAINTIFF’S lawyer moved to withdraw as the attorney of record asserting that the attorney-client relationship was at an "impasse." Counsel argued it was unable to find an expert willing to testify for plaintiff at trial in this medical malpractice action. Plaintiff opposed the motion, alleging she cooperated with counsel and through all the years of representation received "constant assurance that this was a valid case."
Result? Attorney must stay in case.