Opinion
Docket No.: 019149-2010
04-04-2012
Polidoro Properties, LLC v. Borough of Bergenfield
JUDGE
Antimo A. Del Vecchio
Beattie Padovano, LLC
William R. Betesh
Boggia & Boggia, LLC
Dear Counsel:
This matter has been opened to the court on the motion filed by plaintiff's counsel to withdraw as attorneys for the plaintiff.
Findings of Fact
In the certification filed by plaintiff's counsel, Beattie Padovano, LLC ("Beattie Padovano" or "counsel"), counsel states that it has represented plaintiff, Polidoro Properties LLC ("Polidoro Properties" or "plaintiff"), since March 2010. On October 15, 2010, counsel filed the complaint in this matter on plaintiff's behalf. Defendant served plaintiff's counsel with a request for answers to standard and supplemental interrogatories on February 7, 2011. Counsel sent to its client draft answers for review on June 2, 2011 along with a request for additional documents needed to complete the responses. Antimo Del Vecchio, an attorney at Beattie Padovano, certified to having full knowledge of the matter and stated that no response was received to the letter sent to plaintiff. Further, numerous calls were thereafter made by counsel to the plaintiff to inquire as to the status of the outstanding discovery responses.
Correspondence was mailed from counsel to plaintiff dated August 25, 2011, September 23, 2011, and January 11, 2012. A copy of each letter sent was annexed to Mr. Del Vecchio's certification. The letters emphasized the need to complete the discovery responses. The court notes, however, that none of the correspondence made reference to a possible withdrawal of Beattie Padovano as plaintiff's counsel.
Counsel's final attempt to contact plaintiff was made on January 18, 2012. There was response to any of the letters sent to plaintiff. Mr. Del Vecchio also certified that he attempted to reach Gerrard Polidoro, of Polidoro Properties, on his cell phone, but was unable to speak with him or to leave a message.
On February 28, 2012, defendant filed a motion to dismiss plaintiff's complaint for failure to provide discovery. No opposition was been filed on behalf of plaintiff however counsel asked the court to adjourn the motion pending the outcome of the present motion to withdraw as counsel.
Conclusions of Law
After a trial date has been set, an attorney may withdraw as counsel without a motion only upon the filing of the following: the client's written consent; a substitution of attorney executed by both the withdrawing attorney and the substituting attorney; a written waiver by all other parties of notice and the right to be heard; and a certification by both the withdrawing attorney and substituting attorney that the withdrawal and substitution will not cause or result in delay. N.J. Court Rules 1:11-2. In all other situations a motion must be brought. R. 1:11-2.
In the instant matter, a trial date has been set and plaintiff's counsel has not filed the client's written consent to the withdrawal. Thus, it was necessary for counsel to file the instant motion seeking relief.
In Garrett v. Matisa, 394 N.J. Super. 468 (Ch. Div. 2007), the court addressed the notice that an attorney owes a client when the attorney wants to withdraw. The court stated:
[i]t is well settled that an attorney who wants to withdraw from representing a client must notify the client in advance. "Once an attorney undertakes to represent a client, he cannot withdraw from employment without properly advising his client of his intention to do so." In re Schwartz, 99 N.J. 510, 519 (1985). The attorney must also notify the client of the grounds for withdrawal. Montanez v. Irizarry-Rodriguez, 273 N.J. Super. 276, 28788, (App. Div. 1994) ("Of course, before withdrawing from representation the lawyer is obliged to give reasonable notice to the client of the grounds for withdrawal."). At least where the client's whereabouts are known, the notice must also be adequate to actually inform the client that the attorney intends to cease work on the matter. In re Feuerstein, 115 N.J. 278, 286 (1989). These obligations are consistent with the Rules of Professional Conduct. "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client." R.P.C. 1.16(d). The notice should be given in writing, to avoid any misimpression that the attorney is still protecting the client's interests. K. Michels, New Jersey Attorney Ethics, § 16:5-2 at 334 (2004).
[Id. at 472.]
The issue in Garrett arose because the client had effectively disappeared. Ibid. Had it not been that the client moved without a forwarding address, plaintiff's attorney would have notified the client that she wanted to withdraw as counsel. Ibid. In fact, had the client been accessible, the attorney probably would not have filed a motion to withdraw. Ibid.
The court reasoned that even if the retainer agreement required the client to communicate with the attorney, arguably making the client's breach material and relieving the attorney of an obligation to perform additional service, "an attorney's duties go beyond his contractual obligations." Ibid. The court read R.P.C. 1.16(d) (attorneys must take steps to the extent reasonably practical to protect a client's interests upon withdrawal) and R.P.C. 1.3 (a lawyer shall act with reasonable diligence in representing a client) to encompass the duty of an attorney to diligently inquire about a client's whereabouts. Id. at 475. If the diligent inquiry is unsuccessful, "the attorney should accomplish service by publication and take any other steps that may reasonably result in actual notice." Id. at 476. In addition, an attorney that moves for withdrawal must certify to the court as to his or her diligent effort. Ibid.
An attorney who wants to withdraw from representing a client must notify the client in advance and properly advise the client of his intention to do so. The attorney is obligated to give reasonable notice to the client of the grounds for withdrawal and, when the client's whereabouts are known, the notice must inform the client that the attorney plans to cease working on the matter. Here, counsel did not inform the client in advance, did not advise the client of its intention to withdraw, and did not inform the client of its plans to cease working on the matter. Counsel does not claim that the client's whereabouts are unknown. Even assuming, however, that counsel is unable to locate plaintiff, it has not satisfied the notice requirement needed to withdraw from the representation. Counsel has provided an account of the efforts taken to reach plaintiff in order to address the discovery deadline set by the court, but has not certified to the court as to any diligent effort made to notify plaintiff that counsel was seeking to withdraw from representing plaintiff. As the Garrett court asserted, counsel must make diligent effort to actually notice plaintiff, and if plaintiff cannot be located, then counsel shall notify plaintiff by publication. Garrett, supra, 395 N.J. Super. at 477.
Counsel has not taken any of the steps required to withdraw as counsel, except for filing the within motion; it has not obtained the client's written consent to withdrawn nor has counsel provided the client with actual notice of the motion to withdraw. Finally, counsel has not certified to the court regarding any diligent efforts to provide the client with such notice.
For the foregoing reasons, the motion to withdraw is denied without prejudice.
Very truly yours,
________________________
Christine M. Nugent, J.T.C