In a civil lawsuit in California state court, my attorney definitely committed a mistake that might have risen to the level of malpractice, causing me to lose an important motion.
I sought a second opinion, and another attorney advised me to seek a 473b motion. But my attorney refuses to file that motion (which requires him to admit to his mistake in a declaration and pay a fine) and instead is "requesting" that I execute a substitution of counsel form so that he doesn't have to serve me anymore.
I paid all my invoices with him and do not owe him any money. I've already paid him several thousand dollars.
Should I refuse to sign the substitution paper? Should I myself go to the next court hearing and explain this problem to the judge? Should I threaten to report my attorney to the Bar?
Lawsuit / Dispute Attorney
You would be better off with another attorney if you think the one you have committed malpractice. Clients don't realize it, but once they use the word malpractice or raise the even the spectre of malprctice, the appropriate thing for the attorney to do is withdraw, since the attorney will never again have the trust of the client (as well as the reverse.) Attorneys determine case strategy,and an attorney can withdraw if there is an major difference in strategy. Here the attorney many not think the motion at issue was all that important or worth admitting an error to the court.
If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email - Jgold@goldbenes.com
Under the facts you have alleged the attorney will be relieved upon motion unless there is a critical proceeding approaching (trial) such that relief would prejudice your case going forward.
If I were you I would retain new counsel who can then substitute into the case in place of your present attorney -- perhaps the attorney who gave you the second opinion. You do not want to be left without counsel.
You should not threaten to report your attorney to the State Bar. If you feel your attorney has committed an ethical violation you can report or not – that is your choice. However, either do it or not; do not threaten.
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Lawsuit / Dispute Attorney
I would add that, if you refuse to execute the substitution, the attorney will file a motion to be relieved with the court, which will eventually be rubber stamped. Forcing the attorney to do this will simply delay your case. Your best recourse is to find a new attorney today.
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Employment / Labor Attorney
The attorney may now have a direct conflict of interest where, had he committed malpractice, his intersest may dictate that he claim that your case or position is without merit. An attorney may withdraw as your attorney should you fail to follow his advice and pursue an ill advised course. This requires a motion to withdraw, without a great deal of detail as to the specific disagreement. You should discuss the overall benefits and risks associated with fighting to keep an attorney who no longer wants to vigorously fight for you. The issue to me is at what cost to your case you replace him and if it is not so great as the risks associated with convincing him to stay. We do not know what motion was lost nor how strategic, so I cannot address this further. The Court is likely to let your attorney out of the case, unless you are too close to trial, so you may need to sign the Substitution and promptly hire someone else. Good Luck.