Attorney Misrepresentations Result in Revival of Dismissed Claims

Attorney Miscommunications After Denial of Class Certification

The litigation arose after the Federal Aviation Administration (FAA) laid off hundreds of employees over the age of 40 and outsourced their jobs to a defense contractor. The former employees were represented by counsel retained through their union, which later ceased payments to counsel following the reduction in force. A motion to certify the plaintiffs as a class was subsequently denied, and plaintiffs’ counsel sent demand letters for payment to the former employees.

The letters requested $10,000 for continued representation and intimated the firm had no ongoing obligation to the recipients absent payment. Among other misinformation, the letter advised the plaintiffs they had only three options for proceeding in the case: (1) pay for the privilege of continuing as a client of the current law firm, (2) remain in the case as a pro se litigant, or (3) request dismissal. Pro se plaintiffs, the letter explained, would risk recovering little, if anything, from the FAA.

In a later correspondence, the law firm refused to offer legal services, including assistance with discovery requests, to the several hundred plaintiffs who had not paid or agreed to pay counsel in accordance with its earlier demand. Addressed “Dear Unrepresented Plaintiffs,” the letter implied that the firm did not, in fact, represent the recipients. Moreover, the letter contained confusing language that suggested those without counsel were likely to be dismissed from the suit.

Counsel subsequently filed a motion to withdraw from representing those plaintiffs who had not fulfilled the monetary demands. Although that motion was denied, the attorneys declined to advise the nonpaying clients, despite remaining counsel of record. Counsel advised the court that they could not get in touch with the nonpaying plaintiffs and characterized them as “uncommunicative.” Unaware of the full content of counsel’s letters to the plaintiffs, the court dismissed from the litigation those plaintiffs who were unresponsive to discovery and show cause orders.

Court Invokes ABA Model Rules in Reconsidering Dismissals

In a motion for reconsideration, the dismissed plaintiffs asked the court to review its decision on the basis of new evidence: the entirety of the correspondence from ex-counsel. The plaintiffs argued the letters from counsel had discouraged them from participating in the case. They further claimed that their failure to respond was “neither willful nor egregious,” but caused by a misunderstanding of their rights, obligations, and options resulting from their ex-attorneys’ “confusing and misleading” missives.

The court agreed, finding that the plaintiffs’ former attorneys made payment demands without any warning and without any attempt to mitigate the resulting prejudice to the plaintiffs. It reasoned that the proffered letters provided new insights into why the dismissed plaintiffs had been nonresponsive. The court concluded when the plaintiffs’ counsel “suddenly demanded payment for representation after the motion for class certification was denied, it was not unreasonable for a lay person to conclude that this meant that the class action lawsuit was lost and over.”

When an attorney agrees to undertake the representation of a client, the court stated, “counsel is under an obligation to see the work through to completion.” Citing ABA Model Rule 1.16, the court noted that while an attorney is not expected to perpetually work for free, “non-payment does not justify failing to provide competent representation.” Once an attorney has appeared in a pending lawsuit, the court continued, the attorney may not consider a client unrepresented simply because they have not paid fees. “A lawyer must continue to take steps to the extent reasonably practicable to protect a client’s interests upon termination of representation.”

Caution and Clarity of Communication Essential

How does one approach a case that is rife with what Ronald C. Minkoff, New York, NY, member of the ABA Section of Litigation’s Professional Liability Litigation Committee, calls “a law school exam’s worth of ethical issues”? Minkoff suggests that lawyers handle the situation prudently. “Before entering into any fee arrangement, analyze the situation very carefully to try to make the best deal possible. And don’t be afraid to walk away,” he says.

“If you are going to change the fee arrangement midstream, do so in a writing signed by the client, indicating why the fee arrangement is being changed, that the client is voluntarily agreeing, and what the new terms are,” advises Minkoff. “If you are being financially crushed by the representation, ask the court to let you out.”

These types of problems can be avoided with effective client communication. “Clarity is key,” says Nicole M. Reid, Miami, FL, cochair of the Attorneys’ Liability subcommittee of the Section of Litigation’s Professional Liability Litigation Committee. “Plaintiffs often assert that their counsel did not keep them adequately informed or did not clearly explain their options. For this reason, I recommend not only writing regular update reports to clients, but also writing a letter to any client considering a course of action contrary to your recommendations,” suggests Reid.

Amy Mattson is an associate editor for Litigation News.

Hashtags: #AttorneyEthics #AgeBias

Related Resources

• Eileen Libby, “Changing Times: Fee Agreements May Be Modified, But Only for Good Reasons,” ABA J., Aug 2011.
• Peter Gosselin, “Older Americans Facing Job Discrimination Can’t Rely on Courts as Much as Earlier Generations,” ABA J., April 2, 2018.
• Rule 1.4: Communications, ABA Model Rules of Professional Conduct.

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