United States: Clear Notice Of Alteration Of The Attorney-Client Relationship

Last Updated: October 16 2017
Article by Michele C. Sears

In Thomas Cesso v. Gary Owen Todd, Massachusetts Appeals Court 16-9-76 (August 28, 2017),  the Massachusetts Appeals Court held that filing a notice of withdrawal does not necessarily terminate the attorney-client relationship.


In this case, the plaintiff engaged Attorney A (A) and Attorney B (B) to represent him in a divorce and asked them for a client agreement and to enter their appearances; both subsequently filed appearances. Two weeks later, B left the firm and A alleges the plaintiff was notified and asked to decide whether to stay with A or be represented only by B. The plaintiff disputes that this occurred; it is undisputed that A and his firm filed a notice of withdrawal of appearance in the divorce action. The plaintiff denies that he was served with this notice.

On July 25, 2008, A sent the plaintiff a separate letter stating: "Although [B] and I will continue to work together and consult on your case, your hard files will need to be transferred to [B's office].... please execute this correspondence where indicated and return it to my attention as soon as possible so that we may forward your file to [B's] office." The plaintiff maintains that A continued to consult on the case after July 28, 2008, even if he did not bill for the work. There was evidence that B and A still communicated about the case. For example, B billed the plaintiff for two telephone calls with A on August 1, 2008, and August 26, 2008, about "case status, strategy, etc."

Following the conclusion of the divorce action, the plaintiff filed suit against B and his new firm alleging legal malpractice, but later amended to add a claim of legal malpractice and misrepresentation against A. A's motion for summary judgment was allowed, and the plaintiff appealed.

The Rulings

Attorney A contended that the attorney-client relationship did not continue past the filing of his notice of withdrawal. The plaintiff contended that the notice of withdrawal was invalid as A failed to move for permission to withdraw pursuant to Mass. R. Dom. Rel. P. 11(c). However, the Appeals Court found that the withdrawal was not invalid because it was accepted by the Court despite noncompliance with the rule. Therefore, the Court found that the withdrawal was effective to end A's formal appearance, but the inquiry did not end there. The Court held that, on the record, "reasonable persons could differ as to the existence of an attorney-client relationship," so "this issue must be resolved by the trier of fact." However, the Court noted that any court filings after the filing of the notice of withdrawal cannot form the basis of a malpractice claim against A.

The Court also noted that "even a question of fact may be decided as a matter of law when no rational view of the evidence permits a contrary finding." Goulart v. Canton Housing Authority, 57 Mass. App. Ct. 440, 441 (2003). The Court held that as a matter of law any attorney-client relationship ended no later than September 12, 2008, when the plaintiff  knew A was not appearing at trial, was not responding to any direction or communication from the plaintiff, and the plaintiff asked A's firm to transfer the remaining retainer to B. The court held that "at that point, [Plaintiff] could not have reasonably expected to continue to receive legal services from [A]." The Court further held that "no legal malpractice claim can lie against [A] as a matter of law for the conduct of the trial where [Plaintiff] knew that [A] was not trying the case."

The court affirmed the dismissal of a misrepresentation claim. The plaintiff alleged that A misrepresented his intention to represent the plaintiff in the divorce, only to abandon the plaintiff while continuing to make it appear as though A intended to continue to represent him. The motion judge found that any such representations did not survive the termination of the attorney-client relationship upon filing of the withdrawal. While the Appeals Court did not agree that the attorney-client relationship terminated upon filing of the withdrawal of appearance, it found that the misrepresentation claim must fail nonetheless. There was no evidence that A induced the plaintiff to leave his former attorney, and the plaintiff knew that A withdrew. Moreover, as to the plaintiff's claim that A "switched out attorneys," the court found that B was involved before the plaintiff signed a client agreement with A's firm, and the bulk of the work at the outset was performed by B.


Often, an attorney-client relationship ends with the filing of a withdrawal. However, under circumstances such as these, the relationship could continue. An attorney-client relationship may be implied "when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance ... In appropriate cases the third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it." Cesso, citing DeVaux v. American Home Assur. Co., 387 Mass. 814, 817-818 (1983).

While A contends that he told the plaintiff he could decide whether he wished to be represented by A or B moving forward, the July 25, 2008, letter does not state this. Instead, it asserts that A and B would continue to work together. Even if that conversation took place, clearly the plaintiff made no decision, and continued to believe, as the letter stated, that A and B were working together. If it was A's intention for only one of them to continue to represent the plaintiff, he did nothing to make this clear to his client. Therefore, it is not surprising that the Court held that there was a question of fact as to whether the attorney-client relationship existed beyond the filing of the withdrawal.

This case highlights the importance of reducing the scope of the representation or the cessation of the representation to a clear writing. If a lawyer intends to remain in an advisory role only, he or she should make this clear in writing. However, serving as a consulting attorney can be a trap for the unwary and the wary alike. Even if the client is advised of a limited scope of representation in writing, later conduct or communications, as in this case, can alter the scope of representation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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