April 7, 2011 § 5 Comments

When do your actions constitute an appearance in court on behalf of your client?  It’s an important question, because your actions or non-actions can result in professional liability for you.

Take for example this scenario:

Joey, an old client, and his daughter meet with you one morning.  Joey is upset because his wife, Betty, has filed a divorce complaint against him.  He wants you to represent him, but he can’t afford your retainer, and you know from past experience that he probably won’t pay your bill.  In an effort to mollify Joey, you call the lawyer on the other side and tell him that Joey is willing to agree to a divorce, and if Betty will provide a list of property she wants, the case can be settled.  You hang up the phone, Joey and daughter leave thinking all is taken care of, and you promptly put it out of your mind, turning your attention to paying clients.

Fast forward a few months.  Joey returns to your office quite upset.  He hands you a judgment granting Betty a divorce and giving her most of the marital assets.  Oops.

What happens next?  In the case of Simmons v. Simmons, with facts almost identical to those above, Joey’s lawyer filed a motion to set aside the divorce on the basis that the phone call constituted an appearance.  The opposing attorney took the position that he had a vague recollection of a phone call from someone, but could not even remember who called him, and he went forward with the divorce when his client insisted he finalize the case.  The chancellor overruled Joey’s motion, and Joey appealed.  The COA held that the chancellor’s finding that the phone call did not amount to an appearance was one of fact, and would not be disturbed on appeal.

So how do you protect yourself in these situations?  A few suggestions:

  1. Don’t do it.  Don’t make that call.  Explain to Joey that you can not just call the other lawyer without being retained.  If you call, Joey will likely believe that you now represent him, retainer or none, and you may well have a professional responsibility to him.
  2. Okay, if you simply can not resist, then don’t make the phone call without a representation agreement.  If the client can’t pay the full freight tab, consider a limited scope representation agreement at a lesser rate, and reduce your services accordingly.
  3. Document, document, document.  Write a letter and follow up.  Fax the letter; that fax transmission notation and receipt may be just the proof you need if the lawyer on the other side claims he never received the letter.

You’ve probably thought of a few other measures you could take.  Good.  Protect yourself.

Just last week I continued a divorce trial (for two weeks) because a lawyer had gotten into a similar swivet.  To make matters worse, the lawyer has a letter from the defendant, who is in Rankin County Correctional Facility, thanking him for his efforts in representing her, although all he did was make a couple of phone calls to counsel opposite.  He has two weeks to get straight with his client/non-client.

Another post on this subject is here.

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You are currently reading APPEARANCES CAN BE DECEIVING at The Better Chancery Practice Blog.


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