Saturday, March 8, 2008

Disqualifying Fannick: Dixon v. O'Connor

In Dixon Ticonderoga Co. v. Estate of William F. O’Connor 248 F.3d 151(3rd Cir., 2001), the court wrote:

“The threshold question is whether Friedman created an attorney-client relationship with Dixon with respect to a potential malpractice action against O'Connor in 1989. According to the Restatement of the Law Governing Lawyers 26 (Proposed Final Draft No, 11996), which was quoted with approval, Herbert v. Haytaian 292 N.J. Super. 426, 678 A.2d 1183, 1188(N.J. App. Div. 1996), and which both parties agree accurately states New Jersey law--an attorney-client relationship is created with respect to a particular matter when:

1) a person manifests to a lawyer the persons intent that the lawyer provide legal services to the person; and either

(a) the lawyer manifests to the person consent to do so; or

(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.

Because there is a genuine issue of material fact as to whether an attorney-client relationship was created pursuant to 26(1)(b), we do not address 26(1)(a).

The first question is whether Joyce manifested an intent that Friedman provide legal services. Friedman has never seriously disputed the existence of this factor, and with good reason. Joyce (on behalf of Dixon) clearly manifested such an intent when, in 1989, he sought Friedman’s advice about the possibility of suing O’Connor for malpractice.

Friedman rests primarily on the assertion that he “manifested lack of consent to” advise Dixon, but that argument does not carry the day.According to Friedman’s deposition, the strongest statement he made in1989 was: “I don’t like to handle claims against lawyers, and I’m not sure that this one has any real foundation, and I’m certainly not going to handle a claim that I don’t think has a foundation.” This statement could be interpreted in at least two ways: Either Friedman was simply informing Joyce that he would not pursue a malpractice action against O’Connor unless he concluded that it had merit, or he was refusing to advise Dixon at all. The procedural posture of this case mandates that we resolve ambiguities in favor of Dixon, and, as a result, we do not read this statement as an affirmative refusal by Friedman. Therefore, we cannot say that there is no genuine issue of material fact with respect to this factor.

The final issue in determining whether an attorney-client relationship arose between Dixon and Friedman with respect to a malpractice action against O’Connor is whether Dixon reasonably relied on Friedman to provide such services and whether Friedman12a -knew or should have known that it was doing so. Though the question is close, three things convince us that there is a genuine dispute of material fact as to this issue.”

The attorney-client relationship is a special type of contract. Because of the fiduciary relationship between the lawyer and her client, the contract is not an ordinary one. The lawyer, who becomes the agent of the client, has special responsibilities that are not imposed on the client. Restatement of the Law Governing Lawyers Third, § § 14-19(Official Draft 2000).

The Restatement notes that there are three basic ways that the attorney-client relationship may commence. First, the prospective client manifests to the lawyer the intent to retain the lawyer, who agrees to the proposal. Restatement of the Law Governing Lawyers, Third, §14(1)(a) (Official Draft 2000).

Second, the prospective client manifests to the lawyer the intent to retain the lawyer and the lawyer fails to manifest a lack of intent to be so retained under circumstances where it would be reasonable to do so.

For example, assume that the prospective client fears that his driver’s license may be revoked. This person calls the lawyer’s office and asks the lawyer to represent him in the revocation proceeding in 10 days. The prospective client knows that the lawyer often handles these types of cases. The lawyer’s secretary tells him to mail the relevant papers concerning his case, and he does so. The secretary does not mention that the lawyer will not decide to take the case until later. The lawyer does not communicate to the prospective client until the day before the hearing, when he says that he will not take the case. The prospective client detrimentally relied on the lawyer by not seeking another lawyer when it would have been a lot easier to do so. In these circumstances,it would be reasonable for the trier of fact to conclude that there was an attorney-client relationship because the lawyer did not manifest a lack of intent to be hired by the client.Restatement of the Law Governing Lawyers Third, § 14(1)(b) (Official Draft 2000), and Id. At Comment e, Illustration 2.

In order for an attorney-client relationship to be formed, it is not necessary that the client pay or agree to pay any money. Rule 6.1(a).Restatement of the Law Governing Lawyers, Third, § 14 (Official Draft 2000), at Comment c. Noris it necessary that the client sign a written agreement. Restatement of the Law Governing Lawyers Third, § 14 (Official Draft 2000), at Comment c, p. 127. Other rules governing lawyers may require that there be a written fee agreement, but those rules are for the protection of the client, not the lawyer. The obligations of the lawyer and client are not symmetrical because the lawyer has fiduciary duties to the client.

In Gentile v. State Bar of Nevada, 1030, 111 S.Ct. 2720, 115 LEd. 888(1991), the court wrote:

“An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried. 501 U.S. at 1044.

In this case, the Commonwealth believes that Mr. Kerekes divulged confidences and highly privileged information on the assumption Attorney Fannick would represent him. Indeed, in the court of public opinion,Attorney Fannick had, Thereafter, Attorney Faimick abandoned Mr. Kerekes’ ship, laden with the confidences the eight (8) meetings brought him, and joined forces with Harlow Cuadra.

B. An Attorney-Client relationship existed between Attorney Fannick and Joseph Kerekes, therefore the trial court should disqualify Attorney Fannick from Representing Harlow Cuadra.