Garrett v. Matisa

927 A.2d 177, 394 N.J. Super. 468, 2007 N.J. Super. LEXIS 210
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 11, 2007
StatusPublished
Cited by3 cases

This text of 927 A.2d 177 (Garrett v. Matisa) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. Matisa, 927 A.2d 177, 394 N.J. Super. 468, 2007 N.J. Super. LEXIS 210 (N.J. Ct. App. 2007).

Opinion

OSTRER, J.S.C.

Plaintiffs attorney’s motion to withdraw from representation presents the issue: what must an attorney do to satisfy the duty to notify a client of the intention to withdraw when the client has moved without disclosing a new phone number or address? Neither our courts nor the Advisory Committee on Professional Ethics have addressed the question. Yet, the policy underlying the notice requirement, and persuasive out-of-state authority lead this court to conclude that a moving attorney must certify, consistent with R. 4:4-5(c)(2), that (1) he has made diligent efforts to locate his client; and (2) he has been unable to locate and actually serve the client with notice. Upon such a showing, the motion may be served by publication and other means reasonable under the circumstances. Inasmuch as no such showing has been made in this case, the motion to withdraw will be denied without prejudice.

[471]*471 Background.

Plaintiff Lisa Garrett filed a post-judgment motion for parenting time with her son, who she had not seen in many years. Defendant father opposed the motion. Eventually, the court obtained an expert evaluation and conducted a child interview. Although factual issues remained, the parties mutually waived their right to an evidentiary hearing. They agreed to participate in a final settlement conference, and if that failed, they consented to a decision based on the papers on file, the expert report, and final written arguments. The court entered a case management order that embodied this agreement.

Thereafter, plaintiffs counsel notified the court by letter that she was unable to contact her client after plaintiff reported that she could not attend the settlement conference because of illness. Later, in a second letter, counsel notified the court that her client’s family members asked her to cease efforts. Yet, there was no evidence that plaintiffs family members had authority to act on plaintiffs behalf. The court then inquired by letter whether counsel had authority to dismiss the application without prejudice, whether she intended to file the required final written argument, or she intended to seek permission to withdraw. The court wrote that if she sought permission to withdraw, “she will need to serve the motion on her [client], or, if she does not know where she is located, include a certification of diligent inquiry of the sort sufficient under the rules to justify service by publication.”

Plaintiffs attorney then filed the instant motion seeking permission to withdraw based on her client’s failure to communicate with her. She certified:

I have attempted to reach her on her cell phone, which is disconnected, and, as well, through correspondence. She has not responded to my letters. I have been advised by my client’s sister that Lisa is no longer living at the address at which I previously corresponded with her.

The notice of motion to withdraw was served on plaintiff by mailing it to her old address in Hamilton, New Jersey. Apparently, plaintiff gave no forwarding address; no new phone number; or any other easy way for her lawyer to contact her.

[472]*472 Discussion.

It 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, 493 A.2d 1248 (1985). The attorney must also notify the client of the grounds for withdrawal. Montanez v. Irizarry-Rodriguez, 273 N.J.Super. 276, 287-88, 641 A.2d 1079 (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, 558 A.2d 828 (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).

The issue in this case is what notice does an attorney owe a client who has effectively disappeared. Plaintiffs attorney would have actually notified her client had she not moved without a forwarding address. Indeed, if plaintiff were accessible, it seems unlikely that a withdrawal motion would have been filed at all. Presuming that the retainer agreement required the client to communicate with her attorney, if not specifically advise her of any changes in address, one might argue that the client’s breach is material and relieves the attorney of her obligation to perform additional services. Also, one might view the failure to inform the attorney of the new address as a constructive discharge. Cf. N.C. Formal and Informal Opinions, Proposed R.P.C. 223, “Responsibility to Client Who Has Disappeared” (Oct. 19, 1995) (“North [473]*473Carolina Opinion”) (opining that only if diligent inquiry fails to locate client, the client’s disappearance shall be deemed a constructive discharge).

Yet, an attorney’s duties go beyond his contractual obligations.

In light of the unique and special relationship between an attorney and a client, ordinary contract principles governing agreements between parties must give way to the higher ethical and professional standards enunciated by our Supreme Court. A contract for legal services is not like other contracts.
[Cohen v. Radio Elec. Officers Union, Dist. 3, 275 N.J.Super. 241, 259, 645 A.2d 1248 (App.Div.1994), modified on other grounds, 146 N.J. 140, 679 A.2d 1188 (1996)].

See also Pellettieri, Rabstein & Altman v. Protopapas, 383 N.J.Super. 142, 150, 890 A.2d 1022 (App. Div.2006). Even when a client tells an attorney to cease efforts on his behalf, the attorney remains obliged to inform the client of developments in the case. In re Rosenthal, 90 N.J. 12, 16, 446 A.2d 1198 (1982). The court is persuaded that an attorney is compelled to search diligently for his or her client, notwithstanding the client’s possible breach in failing to keep the attorney informed of his or her whereabouts.

Neither our courts nor the Advisory Committee on Professional Ethics have specifically addressed the issue of notice to a disappeared client.1

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Bluebook (online)
927 A.2d 177, 394 N.J. Super. 468, 2007 N.J. Super. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-matisa-njsuperctappdiv-2007.