March 4, 2009
Just Cause For Withdrawal
The New York Appellate Division for the First Judicial Department held that a lawyer firm that withdraws from a personal injury case on the eve of trial must demonstrate just cause for the termination in order to establish a fee claim:
The underlying personal injury action sought damages for serious injuries allegedly sustained by plaintiff while working at a construction site in 2000. On the eve of trial, the Trolman firm moved to be relieved as plaintiff's counsel and for the imposition of a statutory lien for legal fees and disbursements.
It is well settled that "where an attorney's representation terminates and there has been no misconduct, no discharge for just cause and no unjustified abandonment by the attorney, the attorney's right to enforce the statutory charging lien is preserved" (Klein v Eubank, 87 NY2d 459, 464 ; see also Delaj v Jameson, 51 AD3d 450 , lv dismissed 11 NY3d 816 ). However, the moving papers did not give any indication of the ground upon which the relief was sought, stating only that "it became clear to us that we could not proceed as [plaintiff's] attorneys." This vagueness was not cured by counsel's reference, during argument, to an unspecified ethical constraint. In the absence of an adequate showing of the grounds for the relief sought, an evidentiary hearing must be held to determine whether withdrawal was with just cause.
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Does this opinion mean that in order for an attorney to preserve a lien in the case he must state in his motion to withdraw his reasons for withdrawal? If so, doesn't this opinion put the attorney in a difficult situation with regard to his duty of confidentiality? How can an attorney withdraw from a case if he has a conflict of interests and revelation of that conflict would violate his duty of confidentiality? Must he sacrifice his lien in the case?
Posted by: Joe Bowman | Mar 5, 2009 4:06:35 AM