Wednesday, January 20, 2010

Catch 22

An order affirming a $211,000 judgment in a lease/purchase matter was reversed by the South Carolina Supreme Court. The defendants had hired an attorney to defend the action who had been suspended from practice prior to the plaintiff's discovery motion: "Unfortunately, however, [the defendant] had no means of knowing of the suspension, and [the suspended attorney] was prohibited thereby from taking any action on her behalf."

After the client was served with the court's discovery order, she attempted to contact the attorney. By the time she had secured new counsel, the time to respond had elapsed. Notice of the trial was thereafter sent only to the suspended attorney and judgment was entered after "brief" testimony with the defendant not present. A pro se motion to set aside the judgment was denied.

Here, the court concludes: 

We find the Court of Appeals placed an undue burden upon [client] Rice.  Rice repeatedly attempted to contact [attorney] Tullis who, unbeknownst to her, was suspended.  When she received the order from Judge Hill, she again attempted to contact Tullis.   Receiving no answer, she attempted to hire a new attorney.  She received no further communication until such time as she was served with the order issuing judgment against her. 

Because of Tullis’ suspension, Rice found herself in a classic Catch 22 situation which she could find no redress.   When she filed a pro se motion to reconsider the judgment, alleging Tullis’ had abandoned her, the trial court declined to rule on it, treating her as though she were represented by counsel.   The Court of Appeals, however, treated her as a pro se litigant, with a duty to monitor her own proceedings.   

If, as found by the trial court, Rice was represented by counsel, then counsel was required to notify her of the date and time of the hearing and, contrary to the Court of Appeals’ opinion, it was not incumbent upon Rice to monitor the status of her proceedings.

If, on the other hand, as implied by the Court of Appeals, Rice was deemed pro se by her attorney’s suspension, then she was entitled to due process and notice of the final hearing.  Accordingly, absent notice of the proceedings, Rice is entitled to relief from judgment. (citation and footnotes omitted)

There are concurring and dissenting opinions. The dissent would find that the issue was not preserved. (Mike Frisch)

Bar Discipline & Process, Clients | Permalink

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