1-6 Multiple Attorney Representations

• Jurisdiction: United States

1-6 Multiple Attorney Representations

Multiple attorney representations of a client affect the handling of a legal malpractice case. While the existence of a successor attorney may relieve his or her predecessor of liability, referral by an attorney spreads the liability.²⁹⁴

1-6:1 Liability of Predecessor Counsel

An attorney is not liable for his omission if successor counsel had the opportunity to perform the act and thereby avoid the problem. This issue was examined in Frazier v. Effman²⁹⁵ and Mitrani v. Druckman²⁹⁶ with differing results.

Frazier retained attorney Effman in a medical malpractice action. Effman did not join the Florida Patient's Compensation Fund ("FPCF") as a defendant. Rotella replaced Effman as Frazier's attorney. Although he could have done so, Rotella also did not join the FPCF. Frazier then retained a third lawyer who discovered the nonjoinder by Frazier and Effman and the expiration of the limitations period to join the FPCF. Frazier sued both Effman and Rotella for legal malpractice. The appellate court affirmed the trial court's dismissal of the action against Effman with prejudice because, "Under the circumstances of this case, where the complaint shows that the defendant lawyer was discharged and new counsel retained long before the claim became barred, a claim of negligence cannot be maintained."²⁹⁷ The court made no mention of the proceeding against Rotella.

In Mitrani, the former clients alleged a real estate closing did not occur due to the negligence of Druckman, their attorney, who was discharged shortly before the closing. Citing Frazier, Druckman claimed that any liability should be cast on his successor counsel. The trial court agreed and granted summary judgment. On appeal, this decision was reversed.²⁹⁸

The appellate court noted that only three weeks remained before the closing and what occurred during that span was not clear from the record. According to the court, Frazier did not create a "per se rule absolving an attorney from all consequences of negligence any time he is discharged by his client."²⁹⁹ The court also held that there must be sufficient time for successor counsel to "rectify the oversight."³⁰⁰ The court then remanded the case so that the former clients could renew their argument on a more complete record.³⁰¹

In Arrowood Indemnity Co. v. Dogali,³⁰² the court pointedly noted, "Defendants argue that they are not the proximate cause of Plaintiff's damages because successor counsel had an opportunity to...