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Dunkley v. Shoemate6/25/1999
defendant despite the fact that counsel had no contact with the defendant and had not been authorized by the defendant to represent him. The plaintiff appealed after the trial court granted the defendant's motion to set aside an entry of default in the defendant's absence and without the defendant's knowledge or consent.
In holding that the insurer's counsel in Amethyst was without authority to move on the defendant's behalf to set aside the entry of default, the court correctly noted that " o person has the right to appear as another's attorney without the authority to do so, granted by the party for which he [or she] is appearing." Amethyst Corp., 120 N.C. App. at 532, 463 S.E.2d at 400. As the court in Amethyst Corp. further stated, "North Carolina law has long recognized that an attorney-client relationship is based upon principles of agency," and " wo factors are essential in establishing an agency relationship: (1) The agent must be authorized to act for the principal; and (2) The principal must exercise control over the agent." Id. at 532-33, 463 S.E.2d at 400.
In addition to the Court of Appeals' decision in Amethyst Corp., plaintiff relies on RPC 223, an ethics opinion issued by the North Carolina State Bar, and Rule 1.2(a) of the Rules of Professional Conduct of the North Carolina State Bar ("Rule 1.2"). Under RPC 223, "the client's failure to contact the lawyer within a reasonable period of time after the lawyer's last contact with the client must be considered a constructive discharge of the lawyer." Ethics op. RPC 223, N.C. State Bar Lawyers' Handbook 1999, at 198, 199 (Jan. 12, 1996). Once reasonable attempts to locate the client prove to be unsuccessful, RPC 223 requires that the lawyer withdraw from the representation of a client who has disappeared. Rule 1.2(a) requires a lawyer to "abide by a client's decisions" and to "consult with the client as to the means by which they are to be pursued." R. Prof. Conduct N.C. St. B. 1.2(a), 1999 Ann. R. N.C. 503.
Although, as the law firm argues, RPC 223 is based on facts distinguishable from those in this case, RPC 223, Rule 1.2(a), and Amethyst Corp. correctly emphasize the principle that a lawyer cannot properly represent a client with whom he has no contact. Here, as in Amethyst Corp., no attorney-client relationship exists between defendant and the attorneys seeking to represent him. The law firm has had no contact with defendant and has not been authorized by him to undertake his representation in this or any other matter. Therefore, we conclude that the trial court erred in failing to remove the firm from the representation of Shoemate. Accordingly, we affirm the Court of Appeals' holding that the law firm lacks the authority to act on Shoemate's behalf.
Having held that a law firm or attorney may not represent a client without the client's permission to do so, we note that Rule 24 of the North Carolina Rules of Civil Procedure provides a means by which an interested party, under certain circumstances, may intervene in a pending lawsuit. Under Rule 24(a)(2), anyone may be allowed to intervene in a pending lawsuit hen the applicant claims an interest relating to the property or transaction which is the subject of the action and he [or she] is so situated that the Disposition of the action may as a practical matter impair or impede his [or her] ability to protect that interest, unless the applicant's interest is adequately represented by the existing parties. N.C.G.S. ยง 1A-1, Rule 24(a)(2) (1990). Thus, intervention is an appropriate mechanism by which an interested party may attempt to protect its interests in pending litigation.
AFFIRMED.
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