Wednesday, September 5, 2007
A lawyer who had represented a client in a construction lawsuit suffered a heart attack five years into the litigation. As a result, a lawyer assigned to assist in the case left the lawyer's firm. Seven weeks before the scheduled trial, the lawyer moved to withdraw, citing his health problems. The client obtained new counsel, who sought to continue the trial (denied with leave to renew on the scheduled trial date). The case settled prior to the scheduled trial.
The client then sued the lawyer for malpractice. The North Carolina Court of Appeals held that the lawyer was ethically obligated to move to withdraw: "Because [the lawyer] asserted a proper basis and moved to withdraw, [his] conduct did not breach [his] fiduciary duty owed to plaintiff." Further, seeking withdrawal seven weeks prior to the scheduled trial due to health reasons complied with ethical mandates of North Carolina Rule 1.16, notwithstanding the contrary expert opinion offered in opposition to the motion for summary judgment. (Mike Frisch)