In re Kiley - 459 Mass. 645, 947 N.E.2d 1 (2011)

Rule:

An attorney may not terminate an agreement to represent a client simply because the attorney no longer wishes to continue the representation.

Facts:

On November 1, 2006, Michael A. McGibbon (McGibbon or client) entered into a contingent fee agreement with the law firm of Thomas M. Kiley & Associates, LLP (Kiley firm), in which the Kiley firm agreed to perform legal services to prosecute McGibbon's medical malpractice claims against a physician in return for a percentage of the amount, if any, collected on the claims. The agreement was signed by Thomas M. Kiley (Kiley) and the client. On November 26, 2007, Pamela A. Swift, an attorney in the Kiley firm, filed suit against the physician and entered an appearance on behalf of the client in the Superior Court. On February 9, 2010, Swift confirmed in writing a telephone conversation she had with McGibbon in which she informed him that she was taking a "[s]abbatical from the practice of law," and would no longer be affiliated with the Kiley firm after February 11. Swift declared in her letter that, because of her departure from the Kiley firm, "it will be necessary for you to seek successor counsel." The client attempted without success to obtain new counsel. On March 15, Swift moved to withdraw as counsel of record for McGibbon. After a hearing on April 6, the judge denied Swift's motion without prejudice, "there being no appearance by successor counsel accompanying this motion." On May 25, Swift moved for reconsideration, attesting in an affidavit that "[t]here has been a deterioration of the attorney/client relationship in that there are irreconcilable differences between [McGibbon] and myself and irreconcilable differences as to the strategy and/or tactics respective to this claim." On May 28, after a hearing attended by Swift, McGibbon, and defense counsel, the judge allowed Swift's motion to withdraw as counsel of record, and ordered that Kiley, McGibbon, and defense counsel appear at a status conference on June 15. On June 16, 2010, the judge issued his "findings and order" in which he found that McGibbon has a valid contingent fee agreement with the Kiley firm and with Kiley himself, and that McGibbon wanted Kiley to continue to represent him. The judge also found that the case was "falling behind in terms of its compliance with court ordered time standards." The judge ordered Kiley to file his appearance on behalf of McGibbon and ordered the parties "forthwith" to complete all outstanding discovery. On June 21, 2010, Kiley wrote a letter to McGibbon advising him that their agreement had been orally terminated on February 8, 2010, that the oral termination had been confirmed in Swift's letter of February 9, and that, if the agreement had not then been terminated, he was "unilaterally terminating this contract effective immediately." On June 28, 2010, Kiley moved to vacate or reconsider the judge's findings and order. The judge denied the motion. On July 16, 2010, Kiley petitioned a single justice of the Appeals Court for interlocutory relief under G. L. c. 231, § 118, first par., which petition was denied. He then filed a petition for interlocutory relief with a single justice of this court under G. L. c. 211, § 3. The single justice reserved and reported the matter to the full court.

Issue:

Did the judge abuse his discretion by ordering the named partner of a law firm to enter an appearance on behalf of a plaintiff in a civil case where the plaintiff had entered into a contingent fee agreement with the law firm, the law firm attorney who had filed an appearance on behalf of the plaintiff decided to leave the practice of law temporarily, the client could not find successor counsel, and discovery was behind schedule?

Answer:

No.

Conclusion:

The court held that a law firm, after agreeing to represent a client for a contingent fee and filing a complaint that presumably complies with the requirement of a good faith basis under Mass. R. Civ. P. 11 (a) may not withdraw from a case simply because it recognizes belatedly that the case will not be profitable for the law firm. A lawyer's miscalculation of the time or resources necessary to represent a client, the likelihood of success, or the amount of damages "is usually a dubious ground" for withdrawal, because lawyers are better able than clients to forecast these matters. 1 G.C. Hazard, W.W. Hodes, & P.R. Jarvis, Law of Lawyering § 20.9, at 20-23 (3d ed. 2001 & Supp. 2005). See Restatement, supra at § 32 comment m, at 234-235. Attorneys who agree to represent clients on a contingent fee basis must choose their cases carefully, because the law does not allow them easily to jettison their mistakes, especially after the complaint has been filed.