Legal Malpractice

Is it Legal Malpractice if you Don't Do the Work When you Don't Get Paid?

By (Andrew Lavoott Bluestone)

Here is a "brief chambers opinion" from Judge Newman:  Bennett, petitioner v. Mukasey, respondent ,U.S. COURT OF APPEALS, SECOND CIRCUIT.  As you may guess, it was not Mukasey whose legal work was left unfinished.  Bennett's attorney filed a petition, and then when the legal fees went unpaid, allowed it to be dismissed.  Only a year later, when the client asked how his case was going, and the attorney got paid did the attorney ask the court to re-instate.

"Treating the motion as a one-judge procedural motion, See Fed. R. App. P. 27(c); 2d Cir. R. 27(f), I denied it on April 21, 2008, "without prejudice to a further submission, within ten days, explaining in detail the alleged 'lack of cooperativeness' between counsel and petitioner, including whether such lack concerned payment of, or liability for, counsel fees . . . ."

On May 7, 2008 (two days late, see Fed. R. App. P. 26), Rosenthal filed his response. He reported that in May 2006, he met with Bennett and that "[t]erms for . . . retention were discussed, and agreed upon and a modest retainer fee was paid." "Thereafter," the response continued, "as uncomfortable as it is to relate, Petitioner demonstrated a lack of cooperativeness with counsel by failing to pay as agreed upon . . . , and a letter sent to Petitioner advising him of the situation and the need to bring the outstanding balance to date went without response." "In late 2007 or early 2008," the response further continued, "Counsel received a call from Petitioner inquiring as to the status of the case, and was advised accordingly. A further promise to pay was forthcoming, but full payment on that promise was not received until March, 2008. The instant motion ensued."

By his own admission, Rosenthal evidently believes that a retainer agreement and initial payment for an appeal imposes upon counsel no obligation to pursue the appeal, that required steps may await further payment, and that a client's appeal may be permitted to be defaulted and dismissed for lack of such further payment. The Lawyer's Code of Professional Responsibility, as adopted by the New York State Bar Association ("NY Code"), makes clear that Rosenthal is incorrect. It provides: "Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved." NY Code, EC 2-31 (emphasis added). Moreover, "[a] lawyer shall not . . . [n]eglect a legal matter entrusted to the lawyer," id., DR 6-101(A)(3)," and "shall not intentionally . . . [f]ail to carry out a contract of employment entered into with a client for professional services [or] . . . prejudice or damage the client during the course of the professional relationship," id., DR 7-101(A)(2), (3). "

Full post as published by New York Attorney Malpractice Blog on May 15, 2008 (boomark / email).