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Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 6855
Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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Prospective client approaches an attorney to help file a

Customer Question

Prospective client approaches an attorney to help file a civil lawsuit. The attorney collected prospective client's documents/evidences for review and the attorney later decided not to represent prospective client without returning the documents/evidences.
The prospective client then engages another attorney to file the lawsuit. The defendant defaulted in answering. The first attorney that earlier rejected plaintiff's case and kept plaintiff's documents/evidences then files a motion to vacate default judgment
citing incredible excuses why defendant defaulted in answering. If plaintiff files opposition papers without stating that defendant's attorney shouldn't be allowed to represent the defendant due to the aforementioned reason, can plaintiff still file a motion
to remove opposing counsel from the case, so as to bar opposing counsel from representing the defendant at the inquest hearing? If the motion to remove opposing counsel succeeds, does the defendant have a right to stay the inquest hearing and file an appeal?
However, if the motion to remove opposing counsel fails, can plaintiff later file legal malpractice suit against defendant's attorney for breach of confidence/trust or "res judicata" would prevent that (barring a matter already decided by a judge from been
retried)? Moreover if plaintiff doesn't file a motion to remove opposing counsel, does that mean the plaintiff thereby waives the right to file legal malpractice suit against defendant's counsel due to failure of plaintiff to mitigate damages by filing a motion
to remove opposing counsel?
Submitted: 1 year ago.
Category: Legal
Expert:  Irwin Law replied 1 year ago.
Good morning. What a weird fact situation. The attorney appears to have committed a serious breach of ethics. That is quite different from malpractice. There would appear to be no malpractice claim by the plaintiff because the lawyer was not performing legal services for plaintiiff at any time. Barring him from representing the defendant in whatever kind of case it is is one approach. The judge will have to rule on that. Another approach is to file a formal complaint with the NY Bar Association committee which handles ethics violation claims. see: http://www.courts.state.ny.us/courts/AD1/Committees&Programs/DDC/index.shtml I hope this answer is helpful.

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