Saturday, January 5, 2019

Not Ordinary Circumstances

The Alaska Supreme Court reversed an order of summary judgment, costs and the grant of a motion to withdraw in a civil case involving joint representation of a mother and daughter

Plaintiffs/appellants are an adult daughter believed to be incompetent and her mother. After retaining counsel, the mother brought a tort action as the daughter’s next friend for in utero injuries to the daughter, which the mother alleged were caused almost 20 years previously in a boating accident. The defendants filed a motion for summary judgment, but they also offered to permit the plaintiffs to dismiss the case with each side to bear its own costs and fees. The plaintiffs’ attorney believed that accepting this walk-away offer was in the daughter’s best interest, but the mother disagreed.

Facing a conflict of interest between his two clients, the attorney moved to withdraw. The superior court permitted the attorney to withdraw and ultimately granted the unopposed motion for summary judgment and awarded costs and fees against both plaintiffs. The mother and daughter appeal. We hold that before granting the attorney’s motion to withdraw the court should have determined the daughter’s competency, and if she was found incompetent the court should have appointed a guardian ad litem or taken further action to protect her interests pursuant to Alaska Civil Rule 17(c).

The case was filed four days before the statute of limitations ran.

When attorney Barber filed his motion to withdraw, the superior court was immediately faced with a quandary: could the case proceed with an unrepresented and presumedly incompetent plaintiff? Everyone involved —the Bravos, their attorney, and the court — proceeded throughout the case under the apparent assumption that Ashley was incompetent, and the Akers never challenged this assumption in the superior court. [Mother] Helen brought the suit as next friend on the theory that Ashley, as an incompetent adult, did not have the capacity to bring the action on her own behalf.

Thus the court was obligated to either determine she was competent to represent herself or appoint a guardian. 

The attorney had raised a number of issues - including conflicts - as a basis to withdraw

Barber’s motion to withdraw as counsel was based, in part, on “communication” issues and a “fundamental disagreement” over litigation strategy. Barber faced a genuine conflict of interest between his two clients, and under ordinary circumstances withdrawal would have been appropriate. But these were not ordinary circumstances due to the third basis for Barber’s motion: unresolved questions about Ashley’s competency and her mother’s ability to represent her. We conclude it was an abuse of discretion to grant Barber’s motion to withdraw without first resolving the threshold question of Ashley’s competency and considering the need for a GAL to represent her.

(Mike Frisch)

| Permalink


Post a comment