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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118253
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Our question evolved from our retaining of two lawyers on a

Customer Question

Our question evolved from our retaining of two lawyers on a matter involving a real estate problem. The retaining contract specified that they were to provide us with a legal opinion which possibly would be the basis for future legal action. They eventually rendered a verbal opinion, but refused when asked to render said opinion in written form. We believe the reason for this to be an existing conflict which they became aware of subsequent to accepting our retainer. We subsequently sued for the return of the retainer. Since both attorneys were specifically named as our retained attorney we are under the belief that both would have been required to be present at trial. At trial the the judge seemed quite concerned that the assisting attorney, who was to do the heavy lifting, was not in attendance. This fact prevented us from being able to question him in regard to the parole evidence involved in the contract and matters dealing with the work performed as well as his billing. We would appreciate your opinion and specifically which statues or case law that would require the attendance of both retained attorneys as defendants at trial.
Submitted: 2 years ago.
Category: Legal
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If you named both attorneys as defendants, this is a rule of procedure issue in that the defendants have to appear or be represented. See: NY CPLR 320. The rule requires all named defendants to appear and answer the complaint. At trial, if you were intending to call him as a witness, then you needed to subpoena him, but he could appear at trial only through his legal representation. If he did not appear at all and did not have an attorney representing him, your recourse is a motion for summary judgment against the non-appearing attorney.