Attorneys took on a jail beating case only to find that the most major injury, amputation of a testicle, was undertaken due to an incidental diagnosis of cancer, not due to trauma from the beating. So, can they just quit? Court says no.
Scott v Leventhal 2020 NY Slip Op 33276(U) September 30, 2020 Supreme Court, New York County Docket Number: 656211/2017 Judge: Debra A. James distinguishes the difference between withdrawal pre-complaint and after.
“Decedent, Patrick Fleming (Fleming or ·decedent) retained the legal services of defendants on September 8, 2015, after he was allegedly assaulted by a New York City Department of Correction officer on August 16, 2015, while incarcerated at Rikers Correctional Facility (second amended complaint, New York St Cts Electronic Filing System [NYSCEF] Doc No. 5 at ~~ 1, 6, 12). Defendants were retained to file a personal injury lawsuit on Fleming’s behalf (retainer agreemen~, NYSCEF Doc No. 239 ~
2). Fleming alleged that as a result of the assault, his right testicle had to be amputated (NYSCEF Doc No. 5 fl 7). Medical imaging as a result of Fleming’s assault revealed right testicular cancer (id. 1 10). ”
On October 17, 2016, defendants wrote to Fleming and declined to bring a lawsuit on his behalf (withdrawal letter, NYSCEF Qoc No. 246). Fleming later passed away due to complications from cancer {NYSCEF Doc No. 5 fl 11). His mother, as administrator of his estate, eventually brought suit in federal court for the alleged incident (federal court filing, NYSCEF Doc No. 273; Scott deposition tr, NYSCEF Doc No. 261 at 96) .”
“Notwithstanding the above, the court finds unconvincing defendants’ argument that they were obligated to withdraw after their investigation showed that the underlying tort claim was without merit (~ee Willis v Holder, 43 AD3d 1441, 1441 [4th Dept 2007] [conclusory assertiori that the underlying action lacks merit is insufficient to establish good and sufficient cause for withdrawal]). While it may be arguable that decedent’s amputation was due to cancer and not the assault, the
medical records indicate that the cancer was found incidentally
and subsequent to imaging performed as a result of the
assault. The fact that a lawsuit is of “questionable liability,
limited damages, and a likely unfavorable trial result not
the type of impairment of the attorney-client relationship that
permits withdrawal of counsel” (Countryman v Watertown Hous.
Auth_,_, 13 Misc 3d 632, 633 [Sup Ct, Jefferson County 2006]). ”