Nev. judge: Asbestos firm failed client

John O'Brien Dec. 5, 2011, 1:37pm


RENO, Nev. (Legal Newsline) - A Nevada judge says an out-of-state asbestos law firm did not do enough to ensure its client was adequately represented.

On Nov. 21, Washoe County District Judge David Hardy dismissed the lawsuit filed in April by Theodore Butler, who died two months later. Hardy ruled that his counsel, the California firm Brayton Purcell, did not find a new attorney for Butler's lawsuit after Stephen Healy resigned from the firm.

Healy was the only Brayton Purcell attorney who resided in Nevada and was licensed to practice law there. As such, he was responsible for all work performed for Nevada clients, including Butler.

Healy signed and circulated a motion to withdraw as counsel on June 20 and changed his bar registration to inactive status. Through his own fault, the motion was not filed until Sept. 6, and Hardy ruled no other attorney took over as counsel and no new representative of Butler's interests was established in the 90-day period following Healy's motion.

"Inaction is not good faith," Hardy wrote. "Brayton Purcell only had three Nevada matters. It had substantial attorney and paraprofessional resources. It knew Healy was the only resident attorney member of the firm.

"Healy announced his resignation four months before the substitution was required. It affirmatively knew its duty to substitute a proper party and it was engaged in other case matters when it tendered a costs security check in August."

During his time representing Butler, Healy signed an amended complaint on May 11 and received a letter from Ford Motor Company asking him to preserve Butler's lung tissues following his death.

After Healy's June 20 withdrawal motion was circulated, Brayton Purcell attempted to find a replacement. In August, it sent a letter and check to the court to pay security for costs.

Hardy wrote that the firm did not find a new attorney until Sept. 22, eight days after the 90-day period for filing a substitution expired. He granted the motion to dismiss filed Oct. 14 by Western Nevada Supply.

"While Healy was at liberty to end his employment with Brayton Purcell, he was not at liberty to abandon his Nevada clients' interests," Hardy wrote. "He was the only Nevada attorney for the firm.

"No other Brayton Purcell attorney could continue the representation. Healy accepted certain obligations when he accepted the designation of resident attorney members."

The judge added that the firm accepted certain risks by entering the Nevada market with only one attorney and should have had a succession model in its business plan. He also ruled that the defendants were harmed by the firm's inaction because of the issue of lung tissue preservation.

"This request was made at a time when Brayton Purcell did not have a resident attorney member in Nevada as required by the rules of professional conduct," Hardy wrote. "Brayton Purcell has not demonstrated that it complied with the request or that the request was legally untenable."

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