QUESTION
Attorney Incompetence/Negligence/Malpractice?
Asked on Mar 14th, 2014 on Civil Litigation - New York
More details to this question:
An attorney fails to notify opposing counsel their settlement agreement will be void if not signed/returned by (client-specified) deadline. Fast-forward, Opposing Party NEVER SIGNED by deadline, ergo agreement is off the table. Attorney initiates lawsuit on behalf of client, files Summons. Now, same attorney attempting to dissuade client NOT to pursue litigation, claiming opposing counsel "Will file counter-claims for damages against YOU since there was a settlement agreement," and "They will sue you for harassment and frivolous lawsuit". Nutshell: Attorney fails to mention a CRITICAL deadline and the client is held accountable, does that seem right? Now the attorney wants to withdraw as counsel (to save their tail?) does that seem right? Advice please, how to proceed.
1 ANSWER
Reading betweenthe lines, it appears as if the attorney never informed the other side that the offer would be rescinded unless accepted within a given period. The attorney was an authorized agent of the offeror with regard to the offer, so the other side is entitled to rely on what the attorney says. If there is no automatic deadline, the offer remains open until accepted or pulled. If the offer was accepted before the other side was informed that it was pulled you may (depending on many other factors) have a valid contract. You may be able to sue the attorney for malpractice for not informing the other side about the deadline you had placed on the offer, but you will have to prove damages, i.e. that you would have done better if there had been no settlement. That is very difficult to prove.
Answered on Mar 14th, 2014 at 4:40 PM