ETHICS OPINION 491-1960 COMMUNICATION WITH OTHER PARTY TO PENDING LITIGATION

NUMBER 491

QUESTION.

 

Attorneys A represented plaintiff in a personal injury negligence action still pending in the City Court. Their retainer was contingent.

 

Issue was joined in July 1959. Plaintiff’s Bill of Particulars was served in September, 1959.

 

Attorneys A delayed placing the case on the calendar because of their belief that the action could be settled on the basis of proofs which they were convinced could be developed by an extensive investigation. The investigation was completed in January, 1960. Attorneys A, after further negotiations with defendant’s insurance carrier, concluded that the case could not be settled.

 

In February, 1960, before attorneys A had sufficient opportunity to place the case on the calendar., they were discharged by plaintiff, who retained attorney B.

 

Attorneys A refused to transmit the papers in the action to attorney B, or execute a stipulation of substitution, unless the stipulation contained a satisfactory provision protecting their lien for services rendered and disbursements incurred.

 

After attorneys B had ignored, for almost. two weeks, a proposed stipulation mailed to them by attorneys A and when they did not answer several telephone messages left with their secretary, attorneys A sent a letter to attorneys B, with a copy thereof to plaintiff, asking them to take action on the stipulation and reminding them that any delay might prejudice plaintiff’s right to place the case on the calendar.

 

Negotiations between attorneys A and B terminated in the latter part of March, 1960, at which time attorneys B advised attorneys A that they considered the mailing of the aforesaid letter to their client (plaintiff) unethical.

 

In view of attorneys B’s prior conduct, attorneys A fear that attorneys B may unduly delay their motion for substitution.

 

In the interim, attorneys A anticipate a motion by defendant’s attorney, under Rule 156 of the Rules of Civil Practice, to dismiss the complaint for lack of prosecution because of the failure to place the case on the calendar within six months of the joinder of issue.

 

QUERY:

 

1. Was the mailing to plaintiff of a copy of the aforesaid letter to attorneys B unethical conduct on the part of attorneys A?

 

2. Would it be proper for attorneys A to send another letter to plaintiff advising her of the danger of further delay?

 

3. Do attorneys A have the ethical duty to notify the attorney for the defendant of the former’s discharge and of attorney B’s retention by plaintiff?

 

4. a. Although attorneys A are no longer authorized to act in the action on behalf of plaintiff, should they, in order to protect her rights, respond to a motion by defendant to dismiss because of lack of prosecution?

 

b. Although, because of attorneys A’s right to enforce their retaining lien they doubt if they have any duty to transmit such motion papers to attorneys B, should they advise attorneys B of such motion?

 

5. Can attorneys A ethically “sit back” and do absolutely nothing in connection with the pending action?

 

6. What is the proper course of ethical conduct for attorneys A to take?

 

ANSWER.

 

1. Under ordinary circumstances, an attorney having been discharged by a client and informed that other counsel had been retained, would seem to violate the spirit of Canon 9 if he communicated directly with the party (“a lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel”).

 

In the instant case, however, the unusual action of Attorneys B in ignoring the correspondence and telephone calls of Attorney A, and because on the Attorneys A still represented the plaintiff, it would not have been unethical for Attorneys A to write to the plaintiff. He should have limited his letter, however, to a request to the plaintiff to cooperate in effecting a speedy substitution of attorneys and should have sent a copy of such letter to Attorneys B.

 

2. Now that the negotiations between Attorneys A and B have been completed, it would be improper for Attorneys A to send another letter to plaintiff.

 

3. Attorneys A should notify the attorney for the defendant of their discharge and of the retention by plaintiff of Attorneys B.

 

4. An attorney of record in a pending action, although discharged by his client, is not relieved of his duties and responsibilities in connection therewith until a formal substitution of attorneys is effected. Hence —

 

(a) Attorneys A should respond to any motion by defendant as long as they are the attorneys of record, if only for the purpose of obtaining an adjournment until a formal substitution of attorneys will have been effected.

 

(b) Attorneys B should be advised of such motion and the disposition thereof.

 

5. See answer to question No. 4.

 

6. Attorneys A should take whatever steps may be necessary to expedite the formal substitution of attorneys.

 

Dated: April 29, 1960.