need help for my mother

markumn · Sep 8, 2004

What is the name of your state? Tennessee

My mother's house is at stake, and I will appreciate any help I can get.

If lawyers A & B have been representing (for over 10 months) my mother in a lawsuit against a company for damages, and (out of the blue) lawyer A agrees to represent the company in a different case, what can happen to my mother's case?

Also, if lawyer B informs my mother that there is now a "conflict of interest" what can happen if my mother decides not to sign the consent form?

Thank you

OC3902 · Sep 8, 2004

markumn said:
If lawyers A & B have been representing (for over 10 months) my mother in a lawsuit against a company for damages, and (out of the blue) lawyer A agrees to represent the company in a different case, what can happen to my mother's case?

The attorney must advise your mother of any conflict of interest and, under the Tennessee rules governing an attorney's conduct (Rule 1.7), he must get her consent in writing after consultation ... i.e. giving your mother enough information to make a reasonable decision as to whether the attorney can still represent her fairly and adequately.

markumn said:
Also, if lawyer B informs my mother that there is now a "conflict of interest" what can happen if my mother decides not to sign the consent form?

If that happens, she needs to find a new attorney.

markumn · Sep 8, 2004

OC3902 said:
The attorney must advise your mother of any conflict of interest and, under the Tennessee rules governing an attorney's conduct (Rule 1.7), he must get her consent in writing after consultation ... i.e. giving your mother enough information to make a reasonable decision as to whether the attorney can still represent her fairly and adequately.

If that happens, she needs to find a new attorney.

Lawyer A has informed her of the "conflict of interest."
He said that in order for her to remain represented by his firm, she must sign the consent form. If she decides not to sign, will she have to pay what she owes the lawyer, since this conflict of interest did not exist when she hired lawyers A&B 10 months ago?

OC3902 · Sep 8, 2004

markumn said:
Lawyer A has informed her of the "conflict of interest."
He said that in order for her to remain represented by his firm, she must sign the consent form. If she decides not to sign, will she have to pay what she owes the lawyer, since this conflict of interest did not exist when she hired lawyers A&B 10 months ago?

I believe so. Is there a retainer agreement (it would be in writing)? If she has already paid him a deposit, the attorney must return any UNearned portion, i.e. the portion of the deposit for which the attorney hasn't yet rendered his services (Rule 1.16(d)(5) of the Tennessee Rules of Professional Conduct governing attorneys). Here is a link to the rules: http://www.tba.org/ethics/index.html

markumn · Sep 8, 2004

OC3902 said:
I believe so. Is there a retainer agreement (it would be in writing)? If she has already paid him a deposit, the attorney must return any UNearned portion, i.e. the portion of the deposit for which the attorney hasn't yet rendered his services (Rule 1.16(d)(5) of the Tennessee Rules of Professional Conduct governing attorneys). Here is a link to the rules: http://www.tba.org/ethics/index.html

Thank you for the link, I will check it out right now. I just read her retainer agreement. The agreement was to retain the services of the same lawyer who is now representing the company. This lawyer told my mother that he can no longer represent her because he is now representing the company. Can he just drop her like that? Also, there is no mention of "conflict of interest" in the agreement.

OC3902 · Sep 8, 2004

markumn said:
Thank you for the link, I will check it out right now. I just read her retainer agreement. The agreement was to retain the services of the same lawyer who is now representing the company. This lawyer told my mother that he can no longer represent her because he is now representing the company. Can he just drop her like that? Also, there is no mention of "conflict of interest" in the agreement.

In my state, 10 months isn't very long since the beginning of a lawsuit, relatively speaking, so a new attorney can reasonably and adequately take over the case, however is there a trial date coming up soon in your mother's case? If your mother signs the consent form, the attorney must give her the file (Rule 1.16(d)(2)). No he cannot 'just drop her' though it probably seems unfair ... the attorney must take steps to the extent reasonably practicable to protect your mother’s interests, including giving her reasonable time to find new counsel (Rule 1.16(d)(1)). If there's a trial date coming up soon and your mother doesn't agree to her attorney's withdrawal from the case, the attorney might have to withdraw from representation of the company instead, unless the court allows him to withdraw from your mother's case. If no trial date is scheduled yet, how exactly does your mother feel about this. If she has a real beef, she might want to call the Tennessee State Bar in Nashville. I don't believe retainer agreements normally refer to conflicts of interest and I haven't read all the Tennessee rules. However it appears the lawyer very recently decided to represent the company and as I indicated before, he must get her written consent after consultation under the Rules, so the Rules do address conflict of interest, at least. Hope that helps.

markumn · Sep 10, 2004

OC3902 said:
In my state, 10 months isn't very long since the beginning of a lawsuit, relatively speaking, so a new attorney can reasonably and adequately take over the case, however is there a trial date coming up soon in your mother's case? If your mother signs the consent form, the attorney must give her the file (Rule 1.16(d)(2)). No he cannot 'just drop her' though it probably seems unfair ... the attorney must take steps to the extent reasonably practicable to protect your mother’s interests, including giving her reasonable time to find new counsel (Rule 1.16(d)(1)). If there's a trial date coming up soon and your mother doesn't agree to her attorney's withdrawal from the case, the attorney might have to withdraw from representation of the company instead, unless the court allows him to withdraw from your mother's case. If no trial date is scheduled yet, how exactly does your mother feel about this. If she has a real beef, she might want to call the Tennessee State Bar in Nashville. I don't believe retainer agreements normally refer to conflicts of interest and I haven't read all the Tennessee rules. However it appears the lawyer very recently decided to represent the company and as I indicated before, he must get her written consent after consultation under the Rules, so the Rules do address conflict of interest, at least. Hope that helps.

No trial date has been set yet. Thank you so much for the information. I just called the TSBA, and left a voice mail message. I don't want to get anyone in trouble. I just would like to know what her rights are. She has not lived in her house since the incident (house fire) on July 17, 2003. I just want to help her.

OC3902 · Sep 10, 2004

markumn said:
No trial date has been set yet. Thank you so much for the information. I just called the TSBA, and left a voice mail message. I don't want to get anyone in trouble. I just would like to know what her rights are. She has not lived in her house since the incident (house fire) on July 17, 2003. I just want to help her.

Sorry to hear about the house fire. Good luck to you both.

markumn · Sep 10, 2004

OC3902 said:
Sorry to hear about the house fire. Good luck to you both.

Thank you for your kind words and concern. My mother's attorney agreed today, to give her some time to decide what she would like to do. While at work tonight, my mother was served with papers. The company she has a lawsuit agaginst is suing her for past due bills. The bills have nothing to do with her case against the company. She can't afford a lawyer. What can happen to her if she shows up to court by herself? Why would the company choose now to sue her?

OC3902 · Sep 11, 2004

markumn said:
My mother's attorney agreed today, to give her some time to decide what she would like to do.

Good. Perhaps you can remind her to not hesitate to ask her attorney if she has any further concerns or questions.

markumn said:
While at work tonight, my mother was served with papers. The company she has a lawsuit agaginst is suing her for past due bills. The bills have nothing to do with her case against the company. She can't afford a lawyer. What can happen to her if she shows up to court by herself?

A number of things could happen...she may or may not unknowingly waive objections or rights she doesn't know she has ...or other more serious consequences...especially down the line. This is a risk even if she does a little research on her own. Some judges are sympathetic to defendants representing themselves, but I wouldn't count on it. If it's in small claims court, perhaps she can afford to get at least a local lawyers' advice?

Or, since she already has an attorney representing her in her lawsuit against the company, or is getting a new one, perhaps her attorney can defend her in the company's suit as well, for a lower fee. Some civil litigation attorneys handle both plaintiffs' and defendants' cases, some don't.

markumn said:
Why would the company choose now to sue her?

As you said, the bills have nothing to do with her case against the company, so the company didn't have to cross-complain against her in her lawsuit against the company. Possibly the company's strategy is to gain leverage and to try to get your mother to settle her own case against the company for a lower figure than she would otherwise ... who knows what their motive was, but it's likely not legally relevant unless she can show malicious prosecution (very doubtful). If the statute of limitations hasn't passed, so far the company's entitled as a matter of law to maintain the lawsuit.

Note: there may or may not be other grounds to attack the papers/complaint served on her but that's not discernible to anyone without knowing what exactly the complaint says. In any case, your mother must respond to the complaint soon (about 30 days, depending on your state's law).

markumn · Sep 11, 2004

OC3902 said:
Good. Perhaps you can remind her to not hesitate to ask her attorney if she has any further concerns or questions.

A number of things could happen...she may or may not unknowingly waive objections or rights she doesn't know she has ...or other more serious consequences...especially down the line. This is a risk even if she does a little research on her own. Some judges are sympathetic to defendants representing themselves, but I wouldn't count on it. If it's in small claims court, perhaps she can afford to get at least a local lawyers' advice?

Or, since she already has an attorney representing her in her lawsuit against the company, or is getting a new one, perhaps her attorney can defend her in the company's suit as well, for a lower fee. Some civil litigation attorneys handle both plaintiffs' and defendants' cases, some don't.

As you said, the bills have nothing to do with her case against the company, so the company didn't have to cross-complain against her in her lawsuit against the company. Possibly the company's strategy is to gain leverage and to try to get your mother to settle her own case against the company for a lower figure than she would otherwise ... who knows what their motive was, but it's likely not legally relevant unless she can show malicious prosecution (very doubtful). If the statute of limitations hasn't passed, so far the company's entitled as a matter of law to maintain the lawsuit.

Note: there may or may not be other grounds to attack the papers/complaint served on her but that's not discernible to anyone without knowing what exactly the complaint says. In any case, your mother must respond to the complaint soon (about 30 days, depending on your state's law).

I really do appreciate all of your time. My mother owes her original attorney $5000.00. She paid him a $1500.00 retainer. That money has long since been used up. There is a local TV reporter that has been interested in her case from day 1. My mother has not yet given the reporter approval to report her story. However after she was served the papers tonight, she is thinking about changing her mind. Could going public help, hurt or accomplish nothing at all. The company's equipment failed to keep a power surge from entering our home and starting the fire. Do you happen to know anyone with knowledge about the Tennessee Governmental Tort Liability Act? Thanks once again.

OC3902 · Sep 11, 2004

markumn said:
There is a local TV reporter that has been interested in her case from day 1. My mother has not yet given the reporter approval to report her story. However after she was served the papers tonight, she is thinking about changing her mind. Could going public help, hurt or accomplish nothing at all. The company's equipment failed to keep a power surge from entering our home and starting the fire.

Interesting avenue. Whether it would help her is speculative. I don't believe it would help or hurt her in court unless there's a party admission as to negligence (see below) (and this is not one of those famous cases like Scott Peterson's), but if her story is aired at a time when there's a wide audience, maybe just maybe it'll get the attention of the unidentified company (is it a big company?) and make them want to reach a settlement that's more favorable to your mother than if her story wasn't aired. Again this is total speculation as the company is unidentified, the air time is unknown, and not all of the facts and circumstances of the case are known... and while it was a traumatic event for her it may not be big news among the tv audience. Would your mother be embarassed at all by going public? I have a feeling that allowing the news reporter to report a single story wouldn't affect the case substantially...but she should be careful to not admit to anything that might tend to show any negligence on her part, even if it's 'in confidence' to the news reporter

. She could keep it in mind as an option. Btw your mother can't really control what the news reporter will say or how she'll report it.

markumn said:
Do you happen to know anyone with knowledge about the Tennessee Governmental Tort Liability Act? Thanks once again.

No I don't, but it sounds as if you want to know about suing a governmental entity. If so, there would be a short time frame that you have under this "Tennessee Governmental Tort Liability Act" to submit a tort claim (an administrative claim) to the governmental entity...generally you would have to file the tort claim within 90 to 180 days from the date of injury/loss depending on your state law...I've even heard of 60 days in one state

. You would have to submit this tort claim/administrative claim before you could file a lawsuit with the court against this governmental entity.

markumn · Sep 11, 2004

OC3902 said:
Interesting avenue. Whether it would help her is speculative. I don't believe it would help or hurt her in court unless there's a party admission as to negligence (see below) (and this is not one of those famous cases like Scott Peterson's), but if her story is aired at a time when there's a wide audience, maybe just maybe it'll get the attention of the unidentified company (is it a big company?) and make them want to reach a settlement that's more favorable to your mother than if her story wasn't aired. Again this is total speculation as the company is unidentified, the air time is unknown, and not all of the facts and circumstances of the case are known... and while it was a traumatic event for her it may not be big news among the tv audience. Would your mother be embarassed at all by going public? I have a feeling that allowing the news reporter to report a single story wouldn't affect the case substantially...but she should be careful to not admit to anything that might tend to show any negligence on her part, even if it's 'in confidence' to the news reporter . She could keep it in mind as an option. Btw your mother can't really control what the news reporter will say or how she'll report it.

No I don't, but it sounds as if you want to know about suing a governmental entity. If so, there would be a short time frame that you have under this "Tennessee Governmental Tort Liability Act" to submit a tort claim (an administrative claim) to the governmental entity...generally you would have to file the tort claim within 90 to 180 days from the date of injury/loss depending on your state law...I've even heard of 60 days in one state . You would have to submit this tort claim/administrative claim before you could file a lawsuit with the court against this governmental entity.

These days any story that includes this company (Huge Company) is a big deal where I live. This company's actions have been questioned. We have nothing to hide, but I can't say the same about the company. I asked about the TGTLA because that is what this company has cited to be the reason they are not liable. They say they were unaware of the problem. We can prove they were made aware, but that's another story. Also citing the TGTLA, the company has denied our request for a jury trial. They are denying any award of damages over the $85,000.00 limit stated in the TGTLA. My mother's lawyer told my mother to just go ahead and agree to the no jury and set limit. He told her that it's almost impossible to win and for her to save her money. I wanted to fight, but it's not my decision.

OC3902 · Sep 11, 2004

markumn said:
My mother's lawyer told my mother to just go ahead and agree to the no jury and set limit. He told her that it's almost impossible to win and for her to save her money. I wanted to fight, but it's not my decision.

Your mother's lawyer has had the case file for ten months, would know the facts in her case and perhaps has the experience to be able to make this statement. Your desire to fight it or for her to fight it in court is understandable, but if her attorney is telling her it's almost impossible to win at a jury trial, I would take that into serious consideration.

Good luck.

markumn · Sep 11, 2004

OC3902 said:
Your mother's lawyer has had the case file for ten months, would know the facts in her case and perhaps has the experience to be able to make this statement. Your desire to fight it or for her to fight it in court is understandable, but if her attorney is telling her it's almost impossible to win at a jury trial, I would take that into serious consideration.

Good luck.

Thank you for all of your time. It may take another year for this to resolve. I will let you know how it works out.

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