Law Office of Stewart A. Sutton, LLC

A lawyer who represents himself has a fool for a client

admin — Mon, 30 Apr 2012 16:44:54 +0000

In a step-parent adoption case, the putative father was a practicing lawyer. The father received notice of the step-parent adoption petition, but he filed his objection 1-day late. The Court of Special Appeals ruled that the lawyer/father’s failure to file a timely objection to the proposed step-parent adoption constituted an irrevocable consent to the adoption of the child. See In Re: Adoption of Seam M., Maryland Court of Special Appeals, April 27, 2012.

Continuing legal education for attorney is not mandatory in Maryland

admin — Mon, 30 Apr 2012 14:43:50 +0000

Maryland is one of the few states that does not require that attorneys take Continuing Legal Education (CLE) courses. Until Maryland imposes mandatory CLE requirements on attorneys, it is always appropriate to ask your prospective attorney whether he or she has taken any legal courses in the past 12 months and what was the subject matter of the courses. An attorney who does not attend voluntary CLE courses may not understand the limits of his or her legal knowledge and how much more they could learn about the subject. If the attorney tells you that he or she does not attend CLE due to their profiency in the legal subject, then you should ask your prospective attorney why he or she is not teaching voluntary CLE courses.

Divorce attorneys who overpromise, underperform and overcharge

admin — Tue, 10 Apr 2012 15:21:29 +0000

The most common complaint I receive are about certain divorce attorneys who overpromise, underperform, and overcharge. There are several well-known attorneys in Rockville, Bethesda, and Greenbelt who tell their clients that every dollar they spend on their divorce will result in a positive return on their investment. These attorneys also tell their clients that the court will award them attorney’s fees.

These attorneys then over-litigate every possible issue and spend tens of thousands of dollars on unnecessary consultants and expert witnesses. Before the client realizes that his or her attorney is churning the file, the attorney has run up a $100,000 bill.

The attorney then tells the client not to settle the case, because there is a possibility that the court will order the spouse to pay some or all of his or her attorney’s fees. The client then is charged another $50,000 for trial preparation and for the trial. Of course, the court does not award attorney’s fees, because the spouse had litigated the case with substantial justification
and/or the client has adequate resources to pay his or her own attorney.

The final act of the tragedy is when the attorney sues his or her former client for the unpaid attorney’s fees. This is when the former client calls me for advice.

Practice pointer for clients: There is a simple and surefire way to determine if your divorce attorney will overcharge you. Use the Maryland Judiciary Case Search docket to determine how many times your divorce attorney and/or the law firm has sued former clients for non-payment of fees at http://casesearch.courts.state.md.us/inquiry/processDisclaimer.jis

Duty to Report an Attorney’s Unethical Conduct

admin — Thu, 05 Apr 2012 14:35:25 +0000

Rule 8.3 of the Maryland Lawyers’ Rules of Professional Conduct requires that an attorney who knows that another attorney has committed an ethical violation, which “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness”, to report the transgressing attorney to the Maryland Attorney Grievance Commission. Complaints submitted by Stewart A. Sutton on behalf of his clients have resulted in the disbarment of several Maryland attorneys.

Maryland is the only state that does not require bar applicants to pass the MPRE

admin — Wed, 28 Mar 2012 15:54:40 +0000

Maryland is the only state that does not require bar applicants to take and pass the Multistate Professional Responsibility Examination (MPRE). The purpose of the MPRE is to measure the examinee’s knowledge and understanding of established standards related to a lawyer’s professional conduct. I propose that all current and future Maryland attorneys be required to pass the MPRE test.

Here is a sample MPRE question:

An experienced oil and gas developer asked an attorney to represent him in a suit to establish the developer’s ownership of certain oil and gas royalties. The developer did not have available the necessary funds to pay the attorney’s reasonable hourly rate for undertaking the case and proposed instead that, if he prevailed in the lawsuit, he would pay the attorney 20% of the first year’s royalties recovered in the suit. Twenty percent of the first year’s royalties would likely exceed the amount that the attorney would have received from charging his regular hourly rate. The attorney accepted the proposal.

Is the attorney subject to discipline?

(A) Yes, because the agreement gave the attorney a proprietary interest in the developer’s cause of action.

(B) Yes, because the fee was likely to exceed the amount that the attorney would have received from charging his regular hourly rate.

(D) No, because the attorney may contract with the developer for a reasonable contingent fee.

The answer is “D”.

Maryland Attorney Grievance Commission Report for Fiscal Year 2010 to 2011

admin — Tue, 28 Feb 2012 17:46:05 +0000

In fiscal year July 2010 to June 2011, the Maryland Attorney Grievance Commission received 1,880 complaints, of which 429 were docketed for misconduct. Of these 429 docketed complaints, 24 attorneys were disbarred, 9 received suspensions, 33 were reprimanded, and 84 received a warning.

The most common reason for a disciplinary action was incompetence, lack of diligence, and failure to communicate with a client. The second most common reason was misconduct, including dishonesty, fraud, deceit, and/or misrepresentation. Other reasons for disciplinary actions included criminal acts or convictions, misappropriation of clients’ funds, and failure to maintain complete records of the attorney’s trust account.

Can non-modifiable alimony be terminated in Maryland?

admin — Wed, 09 Nov 2011 17:13:30 +0000

In Maryland, it is a common for parties’ Separation Agreement to provide that alimony is non-modifiable. Family Law Section 11-108 provides that alimony can be terminated by the court in 3 situations: (1) remarriage; (d) death of either party; or (3) “if the court finds that termination is necessary to avoid a harsh and inequitable result”. Unless the parties’ Separation Agreement expressly provides that alimony is not subject to termination, the payor spouse always has the right to petition the court to terminate alimony.

It is a common mistake for the attorney representing the recipient of alimony not to include language stating that the alimony is not subject to termination under Family Law Section 11-108.

Is an attorney entitled to attorney’s fees in obtaining a confessed judgment against a former client?

admin — Wed, 21 Sep 2011 19:42:25 +0000

An attorney who files a confessed judgment complaint against his or her former client to collect money owed is never entitled to an award of attorney’s fees.

A promissory note with a confessed judgment provision (hereinafter referred to as a “confessed judgment note”) is a powerful tool to secure payment and, in the event of default, to obtain an expeditious judgment for the balance owed. Confessed judgment notes are commonly used by attorneys to collect outstanding fees owed by clients.

An attorney fee based upon a fixed percentage of a debt in a confessed judgment note is unenforceable. Monmouth Meadows Homeowners Association, Inc. v. Hamilton 416 Md. 325, fn.14 (2010) (“Our holding that where an attorney is entitled to reasonable fees under the terms of a contract, that attorney is not permitted to define that amount by use of a percentage of a judgment”). This is also true for a confessed judgment note. Meyer v. Gyro Transport Systems, Inc. 263 Md. 518, 531 (1971) (“When the provision to confess judgment provides only for a reasonable attorney’s fee, the reasonable amount of the fee must be determined by the court and counsel may not, himself, use a percentage to determine the amount of the attorney’s fee”).

Even if the subject confessed judgment note provided for reasonable attorneys (as opposed to a fixed percentage), an attorney who represent herself in enforcing such a promissory note is not entitled to any attorney’s fees, because no such fees had been incurred:

[I]t seems implicit in the provisions of the note that the 15% commission shall be payable only to an attorney employed in the case or to the plaintiff in reimbursement for his expense in employing such an attorney, and that plaintiff is not entitled to collect such additional compensation when he acts in proper person.

Weiner v. Swales 217 Md. 123, 125 (1958). More recently, the same result was reached in Greenbriar Condominium, Phase I, Council of Unit Owners, Inc. v. Brooks 159 Md.App. 275, 318, cert. denied Greenbriar v. Brooks 384 Md. 581 (2005) (holding “there is nothing in the contract language to suggest that parties representing themselves are entitled to recovery attorney’s fees that they have not incurred”).

Nor is a pro se attorney entitled to an award of attorney’s fees under Maryland Rule 1-341 for litigating a confessed judgment action, because a “A lawyer who represents himself or herself has not incurred legal fees”. Frison v. Mathis188 Md.App. 97, 109 (2009)

How often is legal malpractice committed in family law cases?

admin — Mon, 14 Mar 2011 20:00:47 +0000

Legal malpractice may be committed in any type of case. However, legal malpractice is mostly likely to occur in a family law case, because such cases are the most frequent type of case filed in court. In fiscal year 2010, the Montgomery County Circuit Court opened 15,118 family law cases, compared to 8,647 criminal matters and 4,648 juvenile matters.

Are ratings of attorneys reliable?

admin — Mon, 14 Mar 2011 13:46:54 +0000

I recently received a top rating from Thumbtack.com for attorneys in the Washington, D.C., area. However, consumers should be extremely skeptical of ratings or ranking of attorneys. It is impossible to rate attorneys based upon objective criteria. The result is that such ratings are unreliable and meaningless. Even if such ratings were accurate, it does not mean that every client needs an expensive, top rated lawyer. For example, Consumer Reports for the past few years has given its highest rating (99 out of 100) to the Lexus LS 460L automobile. But that doesn’t mean that everyone needs or can even afford this vehicle.