Dow v. Jones - 311 F. Supp. 2d 461 (D. Md. 2004)

Rule:

In some cases, it may be appropriate to impose liability for legal malpractice claims arising after dissolution because the conduct at issue is appropriate for winding up the law partnership. A number of courts have held that cases that are pending at the time of a law firm's dissolution are matters that must be wound up. Applying this reasoning and the Uniform Partnership Act (UPA) provisions regarding partnership liability during the winding-up period, a former partner's malpractice which occurs after dissolution but in a case that was pending prior to dissolution still can bind a dissolved law firm partnership, because the former partner's conduct is appropriate for winding up partnership affairs. In other cases, courts may apply the UPA rule cited above on notice of dissolution to impose liability for post-dissolution malpractice by a former partner, if the client previously had dealt with the partnership and had no knowledge of the partnership's dissolution.

Facts:

On October 3, 1996, Dow was charged with various criminal offenses in the Circuit Court for Wicomico County, Maryland, arising from an alleged sexual assault of a minor. Although Dow had been appointed counsel from the Office of the Public Defender for Wicomico County, he also sought private counsel to represent him. On November 15, 1996, Dow and his wife met at the Washington, D.C. office of the law firm Seals Jones Wilson Garrow & Evans, L.L.P. ("SJWGE") with two partners, James Benny Jones ("Jones") and Robert Wilson. Dow states that Jones agreed at that meeting to represent Dow, on behalf of himself and the firm SJWGE. January 15, 1997, Dow paid a $ 1,000.00 retainer to Jones and executed a criminal retainer agreement, agreeing to pay a flat fee of $ 12,500.00 for the representation. The retainer agreement is printed on SJWGE letterhead, and states that Dow agrees "to retain the legal services of Attorney James Benny Jones to provide representation" in his pending criminal case. At some time between January 15 and March 26, 1997, Dow also retained attorney Edwin H. Harvey ("Harvey") to assist Jones as co-counsel in the case. On March 11, Jones sent a letter to the Assistant State's Attorney, copied to the Office of the Public Defender, stating that he represented Dow in the pending criminal case and that he would be entering his appearance. The letter is printed on SJWGE letterhead, but refers only to "my representation" of Dow. On March 26, Harvey sent a notice entering the appearances of James Benny Jones and Edwin H. Harvey as attorneys of record for Dow in the pending criminal case. This notice does not reference the firm of SJWGE, but lists Jones's business address as 1010 Massachusetts Avenue, NW, Washington, D.C., which is the address for SJWGE. According to Dow, Jones advised him that he would leave the investigation of the case to the Office of the Public Defender, explaining to Dow that this was standard criminal defense practice. Dow states that the defendants "conducted only a cursory, one day investigation" and failed to interview key defense witnesses. According to Dow, Jones and Harvey also failed to move for a change of venue despite substantial pretrial publicity, did not question potential jurors about this pretrial publicity, did not object to the presentation of inadmissible testimony at his trial, and failed to call available defense witnesses, including alibi witnesses.

Notably, in June 27, 1997, approximately one month before Dow's criminal trial, SJWGE received a certificate from the District of Columbia government formally canceling the firm's status as a limited liability partnership. The firm states that SJWGE actually had dissolved as of May 1, 1997. (Def.'s Reply at 2.) Dow stated that he was not notified and was not aware of SJWGE's dissolution, or that Jones might not have the authority to act for SJWGE, or that Jones might not be a partner of SJWGE.

Dow was tried before a jury on July 30 and 31, 1997, and was found guilty of second degree sex offense, third degree sex offense, and perverted sexual practice. Dow was sentenced to 15 years of imprisonment, all but seven years suspended, and 36 months of supervised probation. The trial court denied a motion for new trial, and Dow's direct appeal was dismissed by the Office of Public Defender. In March 1999, Dow filed a petition for post-conviction relief, alleging ineffective assistance of counsel at his criminal trial. On March 6, 2000, the Circuit Court for Wicomico County vacated Dow's convictions and granted a new trial. On November 26, 2001 the Circuit Court for Wicomico County entered a nolle prosequi in the pending criminal case against Dow.

Dow originally filed this suit in the Circuit Court for Wicomico County on July 28, 2000 against Jones, Harvey, SJWGE, and the four individual partners of SJWGE other than Jones. On December 28, 2000 the Circuit Court entered summary judgment in favor of the individual partners other than Jones, but denied defendant SJWGE's motion for summary judgment. Now, SJWGE’s partners filed a motion for summary judgment against Dow.

Issue:

Should SJWGE’s motion for summary judgment be granted, considering Jones’s malpractice occurred after its dissolution?

Answer:

No.

Conclusion:

SJWGE correctly stated that the partnership's liability for Jones's malpractice depends on the state of partnership affairs at the time of the alleged malpractice, in July 1997. However, even if the partnership had dissolved as of July 1997, SJWGE nonetheless may be liable for Jones's malpractice under two different theories. First, Dow can argue that his representation was a pending client matter that had to be wound up following the dissolution of the partnership. Jones's conduct in representing Dow in July 1997 thus would be appropriate for winding up partnership affairs, and binding on the partnership under former D.C. Code § 41-134(a)(1). Second, Dow can argue that Jones's power to bind the partnership under ordinary agency and partnership law continued after the firm's dissolution with respect to Dow, because Dow did not receive proper notice of SJWGE's dissolution. Dow alleges that he never received notice or otherwise became aware of SJWGE's dissolution, and there is no evidence in the record that SJWGE provided any public notice of its dissolution. Jones's conduct in representing Dow, which would have bound the partnership if dissolution had not taken place, thus continued to bind the partnership under former D.C. Code § 41-134(a)(2)(B). Dow has presented sufficient evidence to raise genuine factual issues under either of these two theories as to SJWGE's continuing liability after the firm's dissolution for Jones's alleged malpractice.