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Jacobs v. Pendel

Decided: December 15, 1967.

BERTHA JACOBS AND HARRY JACOBS, PLAINTIFFS,
v.
ELMER A. PENDEL, DEFENDANT BELOW, V. RUTH N. MILLER AND PLEDGE MILLER, DEFENDANTS-RESPONDENTS, KISSELMAN, DEVINE, DEIGHAN & MONTANO, INTERVENING APPELLANTS



Kilkenny, Carton and Horn. The opinion of the court was delivered by Horn, J.s.c. (temporarily assigned).

Horn

The attorneys for defendants in this automobile personal injury accident case appeal from an order denying their motion for leave to withdraw as attorneys. Since this was an interlocutory order, leave to appeal was sought and granted.

On September 13, 1964 Pledge Miller and Ruth N. Miller were involved in an automobile accident in which plaintiffs were allegedly injured. A complaint was filed in March 1965 and Bankers Allied Mutual Insurance Company, insurers of the Millers, retained appellants to defend the action in behalf of the Millers. In May 1965 appellants filed an answer on behalf of the Millers and subsequently undertook further preparations in anticipation of the trial.

In November 1966 appellants learned that the insurance company was in financial difficulty. In December 1966 they forwarded an interim bill to the insurance company in the amount of $885 plus expenses of $101.50, or a total of $986.50. This was never paid. On December 31, 1966 they received notice from the Insurance Department of the Commonwealth of Pennsylvania that the insurance company had been suspended from transacting insurance business. By letter dated January 17, 1967 appellants informed the Millers of the insolvency of their insurance company and requested a meeting at their office on January 28, 1967. The letter stated there was a strong possibility that the Millers would not have the protection of their insurance policy during the remainder of the suit being pressed against them. The Millers failed to respond to the letter or attend the meeting.

On February 6, 1967 appellants filed a motion supported by affidavit returnable on February 24, 1967 for leave to withdraw as attorneys. Copies were sent to the Millers as well as to all other parties to the action. Due to the absence of the judge from the county on other court business the return date was changed to March 10 and notice was again

sent to all parties. Neither the Millers nor any one else appeared in opposition to the motion.

The affidavit which accompanied the notice of motion generally recounted the above facts. It further stated that no arrangements had been made by the Millers concerning the payment of fees and expenses for future services and expenses; that plaintiff Harry Jacobs was claiming special damages of $21,462.33, and that the personal injuries allegedly sustained by him included a spinal cord compression and paralysis of the lower extremities requiring a bilateral laminectomy of the mid-back and a bilateral rhizotomy in the same area. The affidavit further recited that proper preparation of the matter for trial would require detailed medical examinations and studies for which there necessarily would be expenses.

At the hearing on the motion appellants argued that the foregoing facts warranted their withdrawal. The trial judge denied the motion because he felt it "was not made within a reasonable time, the rights of the defendants may reasonably be prejudiced, and the attorney-client relationship having existed for two years, a withdrawal by counsel now in view of the imminence of trial is legally unwarranted." The order appealed from is dated March 27, 1967.

An attorney who appears of record may withdraw from a case for justifiable and lawful cause, after giving proper notice and obtaining leave of court. The granting of leave by the court is generally in the discretion of the court and depends upon such considerations as proximity of the trial date and possibility for the client to obtain other representation. 7 Am. Jur. 2 d, Attorneys at Law, §§ 143-145, pp. 134-135 (1963); 7 C.J.S. Attorney and Client § 110, pp. 943-945 (1937); Cf. R.R. 1:12-7 A.

Justifiable cause for an attorney's withdrawal includes the failure or refusal of a client to pay or secure the proper fees or expenses of the attorney after being seasonably requested to do so. Fairchild v. General Motors Acceptance Corp., 254 Miss. 261, 179 So. 2 d 185 (Miss. Sup. Ct. 1965);

Harms v. Simkin, 322 S.W. 2 d 930 (Mo. Ct. App. 1959); McKelvey v. Oltmann, 16 App. Div. 2 d 957, 229 N.Y.S. 2 d 814 (App. Div. 1962); Smith v. Bryant, 244 N.C. 208, 114 S.E. 2 d 303 (Sup. Ct. 1965); 7 C.J.S. supra, § ...


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