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Keywords

plaintiffattorneyappealtrialmotionmalpractice
plaintiffattorneydiscoveryappealmotionmalpracticecompliance

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In re Kiley, 459 Mass. 645, 947 N.E.2d 1

Facts

Michael A. McGibbon entered into a contingent fee agreement with the law firm of Thomas M. Kiley & Associates, LLP, for legal representation in a medical malpractice claim. After attorney Pamela A. Swift, who had filed an appearance on behalf of McGibbon, announced her intention to take a sabbatical and withdraw from the case, McGibbon was unable to find successor counsel. The trial court initially denied Swift's motion to withdraw but later allowed it while ordering Kiley to file an appearance on behalf of McGibbon, which led to the appeal.

On November 1, 2006, Michael A. McGibbon (McGibbon or client) entered into a contingent fee agreement with the law firm of Thomas M. Kiley & Associates, LLP (Kiley firm), in which the Kiley firm agreed to perform legal services to prosecute McGibbon's medical malpractice claims against a physician in return for a percentage of the amount, if any, collected on the claims.

Issue

Whether the trial judge abused his discretion by ordering the named partner of a law firm to enter an appearance on behalf of a plaintiff in a civil case where the plaintiff had entered into a contingent fee agreement with the law firm, and the attorney who had filed an appearance decided to leave the practice of law.

The issue raised on appeal is whether a judge abused his discretion by ordering the named partner of a law firm to enter an appearance on behalf of a plaintiff in a civil case where the plaintiff had entered into a contingent fee agreement with the law firm, the law firm attorney who had filed an appearance on behalf of the plaintiff decided to leave the practice of law temporarily, the client could not find successor counsel, and discovery was behind schedule.

Rule

An attorney who has entered an appearance in a case may not withdraw from representation without complying with specific rules, and a judge has discretion to deny withdrawal if it would adversely affect the client's interests.

An attorney who has entered an appearance in a case filed in court may not withdraw from the representation of the client without complying with two rules: Mass. R. Prof. C. 1.16, 426 Mass. 1369 (1998), which identifies the limited circumstances under which an attorney must or may withdraw; and Mass. R. Civ. P. 11(c), 365 Mass. 753 (1974), which identifies the limited circumstances where withdrawal may be done without leave of court and otherwise requires leave of court.

Analysis

The court found that the trial judge acted within his discretion by requiring the Kiley firm to continue representing McGibbon, as the withdrawal would have materially affected his interests given the lack of successor counsel. However, the court noted that the judge erred in specifying that Kiley himself must file an appearance, as the law firm should have the authority to select which attorney would represent the client.

In view of all these circumstances, we conclude that the judge did not abuse his discretion in denying what was, in effect, the Kiley firm's motion to withdraw. It was reasonable to conclude that Swift's motion to withdraw should be allowed, because she was leaving the practice of law, but that the motion to withdraw should be denied to the extent it sought withdrawal of the Kiley firm from continued representation of the client in the case.

Conclusion

The court affirmed the trial court's order requiring the Kiley firm to continue representation but vacated the part of the order that required Kiley to personally enter an appearance.

On remand, the single justice is to affirm the judge's order only to the extent that it denies the Kiley law firm's motion to withdraw from the representation and requires another attorney affiliated with the Kiley firm to file an appearance on behalf of McGibbon.

Who won?

Michael A. McGibbon prevailed in part, as the court upheld the requirement for the Kiley firm to continue representing him, ensuring that he would not be left without legal representation.

The judge noted in his findings that he had been informed by defense counsel that the dispute over McGibbon's representation had 'severely retarded discovery progress' in the case, and that the case was already three years old and was 'falling behind' in its compliance with time standards.

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