Byte of Prevention Blog

by Jay Reeves |

Wife Can’t Be Sued for Husband’s Malpractice

Even though an attorney’s name was listed on her husband’s law office letterhead, she can’t be held liable for his alleged malpractice when there was no actual partnership agreement, a federal appeals court has ruled.

The plaintiff failed to establish a partnership by estoppel, the court said.

In Cotz v. Cotz, the U.S. Court of Appeals for the 3rd Circuit affirmed summary judgment for attorney Lydia Cotz, who had been joined as a defendant in a malpractice lawsuit against her husband George Cotz. The plaintiff was a former client who signed a retainer agreement on letterhead that said Cotz & Cotz, and which listed the names of George Cotz and Lydia Cotz.

“But no legal entity called Cotz & Cotz existed, and the couple never entered into a partnership agreement,” reports Charles Toutant in the New Jersey Law Journal and The Legal Intelligencer. “Through the course of representation, [the client] never had contact with Lydia Cotz and received no work product from her.”

The court said although George Cotz represented that he was in a partnership, there was no evidence that the plaintiff retained him because of that fact. In addition, the client admitted she hadn’t inquired about Lydia Cotz’s involvement in her case.

“Why not, if she cared that Mr. Cotz had a law partner when hiring him?” the court said in its 2-1 opinion. The dissenting judge said there was sufficient evidence to create a factual dispute about the plaintiff’s reliance on the existence of a partnership in making her hiring decision.

The plaintiff’s attorney described the court’s approach as “formalistic” and said “no one would ever say I retained Cotz & Cotz because it’s a partnership,” according to The Legal Intelligencer.

Read the court opinion here. Read news accounts of the case in the ABA Journal and Law360.

NC Rule 7.5 – Firm Names and Letterhead

(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not false or misleading in violation of Rule 7.1. Every trade name used by a law firm shall be registered with the North Carolina State Bar for a determination of whether the name is misleading.
(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) A law firm maintaining offices only in North Carolina may not list any person not licensed to practice law in North Carolina as a lawyer affiliated with the firm unless the listing properly identifies the jurisdiction in which the lawyer is licensed and states that the lawyer is not licensed in North Carolina.
(d) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm, whether or not the lawyer is precluded from practicing law.
(e) Lawyers may state or imply that they practice in a partnership or other professional organization only when that is the fact.

About the Author

Jay Reeves

Jay Reeves practiced law in North Carolina and South Carolina. He was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He is the author of The Most Powerful Attorney in the World, a collection of short stories from a law life well-lived, which as the seasons pass becomes less about law and liability and more about loss, love, longing, laughter and life's lasting luminescence.

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