Monday, August 28, 2017

Legal Malpractice Claim Survives Where Firm Role In Dispute

The Massachusetts Supreme Judicial Court vacated and affirmed in part  the disposition of a legal malpractice case where the parties disagreed as to when the attorney - client relationship started and ended.

The case was assigned to attorney Quigley, who left the Todd firm. There was disagreement as to the firm's role post Quigley's departure but

There is no dispute that Cesso never communicated to Todd or the Probate and Family Court any objection to Todd's filing a notice of withdrawal in the divorce action. Cesso never objected to Todd's lack of response to any of the seven e-mails copied to Todd after July 28, 2008, and ceased communicating with Todd substantively about the case after August 21, 2008. Todd was not present in court for the first two days of trial, Septemeber 8 and 9, 2008. Cesso did not object to Todds absence.

Cesso sued Quigley and later added Todd as a defendant. 

The question at issue here is whether Todd's attorney client relationship with Cesso continued after July 28, 2008. The motion judge found that, as a matter of law, Todd ceased being Cesso's attorney in the divorce action on the date Todd signed the notice of withdrawal. We disagree. On this record, "reasonable persons could differ as to the existence of an attorney-client relationship," so "this issue must be resolved by the trier of fact."

 ...Todd expressly told Cesso that, after Todd's withdrawal as counsel of record, Todd and Quigley would "continue to work together and consult on [Cesso's] case." This was consistent with the established division of labor, with Todd settingstrategy and Quigley executing that strategy. Cesso took actions, such as copying Todd on e-mails, corroborating that Cesso thought Todd was still working on the case. Resolving all evidentiary inferences in favor of Cesso, Todd took no steps to disabuse Cesso of the notion that he (Todd) was still working on the case, albeit in a behind-the-scenes role. Instead, Todd sent a billing cover letter that a reasonable person could read to indicate that he would continue to work and bill on the case. The record, though thin, is enough to permit -- but not require-- the finder of fact to draw the inference that Cesso reasonably believed that Todd was continuing to consult in the background.

 The dismissal of a misrepresentation count was affirmed. (Mike Frisch)

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