I recently represented a client who had a legal malpractice claim against his former securities litigation attorneys. The client had retained securities attorneys to pursue a claim against a national bank for breach of its fiduciary duty as an indentured trustee for mortgage backed securities. The client had loss his entire investment in high interest promissory notes backed by mortgages when the issuer filed for bankruptcy. Unfortunately, the client’s securities litigation case was dismissed by the court due to the attorneys’ failure to prosecute the lawsuit in a diligent manner.
I was able to obtain a favorable settlement for the client against the former attorneys. The client recovered from his legal malpractice case and a prior case about 25% of his losses from the mortgage backed securities. A 25% recovery of losses in a securities case far exceeds the national average of the recovery of 2.2% of losses in the settlement of class action securities cases in 2014.
For a client to sue his or her former attorney in Maryland for legal malpractice, the client must first have suffered damages. This usually means that the client must wait until the underlying case is concluded to determine whether in fact the attorney’s malpractice caused the client to suffer damages.
A cause of action “does not accrue until all elements are present, including damages”. Baker, Watts & Co. v. Miles & Stockbridge 95 Md.App. 145, 187 (1993); Owens-Illinois v. Armstrong 326 Md. 107, 121 (1992) (holding that a cause of action arises “when facts exist to support each element”); Rounds v. Maryland-National Capital Park & Planning Commission 441 Md. 621, 654 (2015) (“For any statute of limitations analysis, the operative date is the date that a claim accrues”).
Damage is a necessary element of a legal malpractice count. Supik v. Bodie, Nagle, Dolina, Smith & Hobbs, P.A. 152 Md.App. 698, 717 (2003) (legal malpractice requires “duty, breach, causation, and damage”). “The absence of any one of those elements will defeat a cause of action in tort”. Id. Thus, the accrual of a tort claim requires a party “first sustains compensable damages that can be proven with reasonable certainty”. Edmonds v. Cytology Serv. of Maryland, Inc. 111 Md.App. 233, 270 (1996); Rounds, 441 Md. at p. 654 (holding that a “claim accrues when the plaintiff suffers the actionable harm”).
Maryland courts have uniformly held that the “mere possibility of an injury in a negligence action does not rise to a cause of action”. Supik v. Bodie, Nagle, Dolina, Smith & Hobbs, P.A. 152 Md.App. 698, 719 (2003); 65 C.J.S. Negligence § 56 at 353 (2000) (“The possibility of injury is not injury itself . . . possibility is insufficient to impose any liability or give rise to a cause of action”) (citing Resavage v. Davies, 199 Md. 479 (1952)).
In professional malpractice cases, there may be a long time interval between the negligent act and the resulting harm. Edmonds,111 Md.App. at 257 (holding that the injury does not always occur simultaneously with the negligent act). For a cause of action for professional malpractice to accrue, “there must be not only the negligent act, but a consequential injury, and the injury is the gravamen of the charge”. Supik, 152 Md.App. at 719 (quoting 65 C.J.S. Negligence § 56 at 352 (2000)).
The rationale that the accrual of a legal malpractice claim requires damages is consistent with the public policy of fostering the attorney-client relationship: “It would be detrimental to the traditional attorney-client relationship to suggest that a client, each time a disagreement arose, should expect to be damaged and be required to consult yet another counsel to review the actions of the attorney earlier retained”. Supik, 152 Md.App. at 722.
The most common question that I’m asked is how long does a client have to sue his or her former attorney in Maryland for legal malpractice. The general answer is that the 3-year time period to sue a former attorney for malpractice begins to run when the client discovered or should have discovered the malpractice by the exercise of reasonable diligence.
There are many situations in which a client will not discover the attorney’s legal malpractice until many years have passed. In such situations, Maryland recognizes three doctrines that toll the statute of limitations: (a) the discovery rule; (b) the “continuation of events” theory; and (c) the “fraud exception” of Courts & Judicial Article § 5-203.
After a legal malpractice cause of action arises, the “discovery rule tolls the accrual of the limitation period until the time the plaintiff discovers, or through the exercise of due diligence, should have discovered the injury”. Frederick Road Limited Partnership v. Brown & Sturm 360 Md. 76, 95-96 (2000); Penwalt Corp. v. Nasios 314 Md. 433, 579 (1988) (holding that the statute of limitations does not begin to run until a plaintiff knows or reasonably should know the nature and cause of his or her harm); Litz v. Maryland Department of Environment 434 Md. 623, 641 (2013) (holding that the discovery rule “tolls the accrual of an action until the plaintiff knows or should have known of the injury giving rise to his or her claim”); Poffenberger v. Risser 290 Md. 631, 634-635 (1981) (“the cause of action accrues when the wrong is discovered or when with due diligence it should have been discovered”); O’Hara v. Kovens 305 Md. 280, 302 (1986) (holding that notice to trigger the statute of limitations “means having knowledge of circumstances which would cause a reasonable person in the position of the plaintiffs to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged” claim).
Discovery or inquiry notice “is notice implied from ‘knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry (thus, charging the individual) with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued’”. Windesheim v. La Rocca 443 Md. 312, 327 (2015) (quoting Poffenberger v. Risser 290 Md. 631, 637 (1981)). “Simply stated, inquiry notice is ‘circumstantial evidence from which notice may be inferred’”. Id.
Maryland “has long applied [the discovery rule] in all manners of malpractice litigation”. Frederick Road, 360 Md. at 97. In such cases, the statute of limitations is tolled until the plaintiff has sufficient “knowledge of circumstances which would cause a reasonable person in the position of the plaintiffs to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged cause of action”. Round v. Maryland National Capital Park & Planning Comm. 441 Md. 621, 654-55 (2015) (internal quotations omitted).
Maryland was the first state to adopt the “discovery rule” in both medical and legal malpractice cases. Hahn v. Claybrook 130 Md. 179 (1917); Poffenberger v. Risser 290 Md. 631, 634 (1981) (noting that a commentator claimed that Maryland was first to adopt the concept); Mumford v. Staton, Whaley & Price, 254 Md. 697 (1969); 3 Ronald E. Mallen, Legal Malpractice § 23.55 (2016 ed.) at 593. California was the second state to adopt the “discovery rule”. Id. at 594. The adoption of the discovery rule did not alter the requirement that a cause of action would not accrue until the client suffers actual damages. Id. at § 23:24 at p. 457; Budd v. Nixen 6 Cal.3rd 195, 198 (1971) (“We hold that a cause of action for legal malpractice does not accrue until the client suffers damage and that the determination of that date raises an issue of fact”).
“Maryland has also recognized the ‘continuation of events’ theory, a corollary accrual doctrine, which serves to toll the statute of limitations where a continuous relationship exists between the parties”. Frederick Road, Md. 360 at 97.
This tolling doctrine avoids the unnecessary disruption of the attorney-client relationship: “The continuous representation rule is consistent with the purpose of the statute of limitations, which is to prevent stale claims and enable the defendant to preserve evidence. When the attorney continues to represent the client in the subject matter in which the error has occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.” 3 Ronald E. Mallen, Legal Malpractice § 23.44 (2016 ed.) at 533.
The “continuation of events” theory is based on the equitable principal of detrimental reliance: “When a relationship develops between two parties, built on trust and confidence, the confiding party may rely upon the “good faith of the other party so long as the relationship continues to exist”. This is especially true in fiduciary relationships such as the attorney-client relationship where a “client has the right to rely on his or her lawyers’ loyalty and to believe the accuracy and candor of the advice they give”. Supik, 152 Md.App. at 714 (quoting Frederick Road, 360 Md. at 98 & 103).
The rationale for tolling the statute of limitations when there is a continuation of services by an attorney is that the attorney-client relationship is based upon “mutual trust and confidence” and the client “has the right to relax his or her guard and rely on the good faith of the other party so long as the relationship exists”. Frederick Road, Md. 360 at 98 & 102. The client’s right to rely upon an attorney’s advice is “founded upon public policy, because the confidential and fiduciary relationship enables an attorney to exercise a very strong influence over his client and often affords him opportunities to obtain undue advantage by availing himself of the client’s necessities, credulity, and liberality”. Id., at 102 (quoting Hughes v. McDaniel 202 Md. 626, 633 (1953)).
It is “well settled that trust and confidence are basic to the attorney-client relationship”. Frederick Road, Md. 360 at 101; Bar Association of Baltimore City v. Marshall 269 Md. 510 (1973) (“The relationship existing between an attorney and his client is one that of necessity requires mutual trust and confidence”). Accordingly, “a client has the right to rely on his or her lawyer’s loyalty and to believe the accuracy and candor of the advice they give”. Frederick Road, Md. 360 at 103.
As a result of their confidential relationship, the client “is under no duty to make inquiries about the quality or bona fides of the services received, unless and until something occurs to make him or her suspicious”. Id. at 98; Desser v. Woods 266 Md. 696, 709 (1972) (“Nor is the confiding party under any duty to make inquiry to discover that the confidential relationship has been abused during the continuation of that relationship”).
Nevertheless, the statute of limitations will begin to run during an attorney-client relationship when “the confiding party knows, or reasonably should know, about a past injury”. Supik, 152 Md.App. at 714-15. However, it would normally take “extraordinary diligence”, not the required “ordinary diligence”, for client to discover an attorney’s legal malpractice during the representation, because the foundation of the attorney-client relationship is built upon trust and confidence in the attorney’s advice. Frederick Road, 360 Md. at 105-06.
When “the knowledge of a cause of action is kept from a party by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud”. Courts & Judicial Article § 5-203; Frederick Road, 360 Md. at 98-99.
When there is an attempt to fraudulently conceal a cause of action, “a person is said to be on inquiry notice when a reasonable person would have used due diligence to investigate the fraud or underlying injury”. Supik, 152 Md.App. at 715; Frederick Road, 360 Md. at 98-99; Dashiell v. Meeks 396 Md. 149, 169 (2006) (holding whether the statute of limitations is tolled “is ordinarily a question of fact as to whether the plaintiff failed to discover the cause of action because he failed to exercise due diligence or whether he was unable to discover it and, as a result, unable to exercise due diligence, because the defendant concealed the wrong”).
The “fraud exception” begs the question that “if a party is perpetrating fraud in such a manner as to obfuscate the confiding party, would a reasonable person be otherwise attuned to the fraud”? Supik, 152 Md.App. at 715. The logical answer is that the discovery of an attorney’s fraud by the client would normally take “extraordinary diligence”, as opposed to the required “ordinary diligence”. Frederick Road, 360 Md. at 105-06.
Maryland Rule 2-652(a) provides an attorney who has provided legal services to a client may retain the papers of the client in his possession until the attorney’s claim for fees is satisfied, unless the retention of the client’s papers would be prejudicial to the client. See Rule 1.16(d) of the Maryland Lawyers’ Rules of Professional Conduct (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practical to protect a client’s interest, such as . . . surrendering papers and property to which the client is entitled”).
A retaining lien permits the attorney to “secure” his claim for unpaid fees through retention of client property in his possession. The attorney must have performed services for the client, for which the attorney was entitled to recompense, in order to validly assert the retaining lien. See Attorney Grievance Comm’n v. McIntire, 286 Md. 87, 405 A.2d 273 (1979) .
When a Maryland attorney asserts a retaining lien, he must inform the client of the liquidated amount of unpaid fees and expenses. Reasonably clear and understandable substantiation of how the attorney arrived at those liquidated amounts must also be offered. In Attorney Grievance Comm’s v. Rand ____ Md. ___ (2015), the attorney was not entitled to assert a retaining lien, because he had failed to submit periodic invoices as required by the parties’ fee agreement and the invoices themselves contained duplicative entries.
We expect that attorneys should be able to write well. After all, litigation involves filing countless motions and oppositions. I having read thousands of documents drafted by opposing counsels, I estimate that about 5% are excellent writers, 90% are good writers, and 5% are horrible writers.
If you want to retain an attorney who is an excellent writer, I recommend that you ask the attorney for a recent writing sample and ask the attorney the names of the last 3 books he or she has read. Great writers are also prolific readers. Steven King, who has sold in excess of 300 million books, states this about writing: ““If you don’t have time to read, you don’t have the time (or the tools) to write. Simple as that.”
I read about 40 books a year. My favorite authors include Dave Barry, Bill Bryson, Christopher Buckley, Michael Connelly, Robert Galbraith (J.K. Rowling), John Grisham, Chelsea Handler, William Least Heat-Moon, Steven King, Stieg Larrson, Michael Lewis, George R.R. Martin, Chris Moore, David Sedaris, Robert Reich, Neal Stephenson, Sarah Vowell, and Jeannette Walls.
In its July 24, 2015 opinion in Attorney Grievance Commission v. Kenneth Haley, the Maryland Court of Appears disbarred an attorney for depositing legal fees into his business account, instead of his Attorney Trust Account, without client’s informed, written consent.
In its strongly worded opinion, the Court of Appeals cogently explained: “A lawyer engages in misappropriation by intentionally depositing unearned fees into an operating account instead of an attorney trust account, or retaining unearned fees after the representation’s termination, without the client’s consent. See Garrett, 427 Md. at 227, 46 A.3d at 1179 (“Misappropriation is any unauthorized use by an attorney of a client’s funds entrusted to him or her, whether or not temporary or for personal gain or benefit.” “[M]isappropriation of funds . . . is an act infected with deceit and dishonesty[,] and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.” Attorney Grievance Comm’n v. Wills, 441 Md. 45, 59, 105 A.3d 479, 487 (2014). In Attorney Grievance Comm’n v. Roberts, 394 Md. 137, 166 (2006) we stated: ‘The sanction of disbarment is so justified because attorneys are charged with remembering that the entrustment to them of the money and property of others involves a responsibility of the highest order. They must carefully administer and account for those funds. Appropriating any part of those funds to their own use and benefit without clear authority to do so cannot be tolerated'”.
Rule 1.15(c) of the Maryland Lawyers’ Rules of Profession Conduct requires that all fees paid by a client be deposited into the Attorney Trust Account, unless the client has given his or her informed, written consent to a different arrangement. Informed, written consent requires the attorney to advise the client of both the advantages of depositing the fees into the Attorney Trust Account as well as the disadvantages of depositing the fees into the attorney’s business account.
Practice pointer for clients: It is a common trick among Maryland attorneys to claim that a portion of your initial fee is “earned when paid” or constitutes a non-refundable retainer. You should strike such language from any proposed retainer agreement.
A lawyer may only withdraw funds from the Attorney Trust Account as legal fees are earned or expenses incurred. Accordingly, the invoices from your lawyer should reflect that your initial retainer was deposited into the law firm’s Attorney Trust Account.
Each year, I review dozens of retainer agreements drafted by Maryland law firms. Here’s my list of the six most common problems I find in Retainer Agreements:
1. The language in the Retainer Agreement is ambiguous: I reviewed a contingency fee agreement which was so poorly drafted that it was impossible to determine whether the client owed a 1/3rd or a 40% contingency fee.
2. The Retainer Agreement contains an unenforceable provision: I have encountered quite a few retainer agreements that state that if the law firm sues the client for fees owed, then the law firm is entitled to an award of attorney’s fees in the amount 15% of the amount due. Such a provision is unenforceable.
3. The Retainer Agreement has a provision that violates the Maryland Lawyers’ Rules of Professional Conduct: Many law firms state in their Retainer Agreement that some or all of the initial retainer paid by the client is “earned when paid”. Such a provision is unenforceable, unless the law firm has explained in writing the disadvantages of depositing the retainer into the law firm’s business account as well as the advantages of depositing the retainer into the Attorney Trust Account.
4. The Retainer Agreement contains repugnant language: I recently encountered a Retainer Agreement that states that the client will be charged double the specified hourly rate if the client telephones the attorney at his or her phone number, even if the attorney had requested that the client call him or her at home.
5. The Retainer Agreement states the law firm will bill in fifteen minute intervals: Most law firms bill in 6 minute increments. With a 15 minute interval, a law firm can bill a client for 1 hour of time, even if the lawyer performed four discrete 2 minute tasks in the course of a day. It is patently unfair for a client to be charged for one hour of work when the attorney has actually spent less than 10 minutes rendering legal services.
6. The Retainer Agreement is signed “under seal” by the client: Most Retainer Agreements in Maryland request that the client sign it “under seal” without explaining the significance of signing the agreement “under seal”. By having the client sign the Retainer Agreement “under seal”, the law firm has extended the time for it to sue the client for fees owed from 3-years to 12-years.
When you hire an attorney, it is common that you will pay a retainer. The attorney is obligated to deposit the entire retainer into the law firm’s Attorney Trust Account (also called an IOLTA Account). The attorney may only withdraw fees as they are earned.
I have encountered several Maryland law firms with Engagement Agreements that state a portion of the initial retainer is “earned when paid”. This means that a portion of the initial retainer will be deposited into the Attorney Trust Account, but that the balance will be deposited into the law firm’s operating account.
There is no reason for a law firm’s Retainer Agreement or Engagement Agreement to state that a portion of your retainer is “deemed earned when paid”, except to deceive you into believing that you will forfeit part of your retainer if you were to terminate the attorney.
It is also a violation of Rule 1.15(c) of the Maryland Lawyers’ Rules of Professional Conduct for an attorney not to deposit a client’s retainer into the law firm’s Attorney Trust Account without the informed, written consent of the client.
Rule 1.15(c) of the Maryland Lawyers’ Rules of Professional Conduct states: “Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and withdraw those funds for the lawyer’s own benefit only as fees are earned or expenses incurred”.
“Informed consent” is defined in Rule 1.0(f) as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct”. An attorney “must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision”, including “any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives”. Note 6 to Rule 1.0.
In the recent case of Attorney Grievance Commission of Maryland v. Chapman, 430 Md. 238 (2013), the Court of Appeals held that an attorney had violated Rule 1.15(c) by failing to explain to the client in writing the disadvantages of a non-refundable “engagement fee” and the advantages of depositing the retainer amount into the attorney’s Trust Account: “The retainer agreement in the instant case purported to justify the fee being “earned upon receipt” because Chapman was precluded from, or limited in, representing other clients by virtue of undertaking representation and because of the need to engage consultants. There is no evidence, however, that the retainer agreement explained the risks associated with paying a fee that would not be held in trust—namely that the fee would be considered earned upon receipt, no matter the level of effort undertaken by the lawyer, and that return of any portion of the fee, thus, could be precluded. Although we have not decided a case involving whether a writing was sufficient to constitute informed consent, the definition in Rule 1.0(f) makes clear that an attorney must communicate the risks associated with a fee arrangement that varies from the standard escrow arrangement. As the hearing judge noted, the retainer agreement only contained a small section informing the client that the fee was earned upon receipt. Neither the retainer agreement, nor Chapman personally, explained the material risks associated with entering into an “earned upon receipt” fee agreement, in violation of Rule 1.15(c)”. Id. at 276-77 (emphasis added)
With respect to “earned when paid” retainers, “the burden falls on the attorney to prove that the client not only consented to the arrangement but that he or she was properly informed of the risks associated with the arrangement and that the consent of the client was confirmed in writing”. Maryland Bar Journal, “Attorney Grievance Commission: Does a Retainer Have to be Deposited in Trust?”, July 2013, p. 54.
In addition to the risks outlined by the Court, it seems reasonable that an attorney should also advise a client of the benefit of depositing the client funds in trust which include, inter alia, [a] the funds cannot be removed from the trust account until earned by the attorney which guarantees that any unearned funds will remain available to immediately refund the client at the termination of the representation; [b] records of receipt, deposit, and maintenance of the funds will be created and maintained for 5 years; [c] the funds deposited in a trust account will not be subject to attachment by the attorney’s creditors; and [d] the funds cannot be used by the attorney or the law firm as collateral for loans, to pay expenses unrelated to the representation or for the attorney’s personal benefit. Id.
An attorney’s failure to disclose in writing to a client the disadvantages and risks of a non-refundable “engagement fee” is a serious ethical transgression. Mr. Chapman received an indefinite suspension for violating Rule 1.15(c) and other rules. Attorney Grievance Commission of Maryland v. Chapman, 430 Md. 238, 278 (2013).
In the past two years, numerous attorneys have been disciplined for not obtaining their clients’ informed written consent to withdraw fees from the Attorney Trust Account before they were earned. Attorney Grievance Commission of Maryland v. Zimmerman 428 Md. 119, 130 (2012) (“Rule 1.15(c) requires that a lawyer deposit advance payments of legal fees and expenses in an escrow account and prohibits the lawyer from withdrawing the funds for her own benefit until earned, absent the client’s informed consent confirmed in writing”); Attorney Grievance Commission of Maryland v. Tanko 427 Md. 15, 32-33 (2012) (holding that provision that “clients consents to the deposit of any funds paid hereunder into the personal account of the attorney, rather than a Client Trust Account, pursuant to Rule 1.15 of the Maryland Rules of Professional Conduct” did not constitute “informed consent” due to the attorney’s failure to “include the necessary explanation of the material risks or alternatives”); Attorney Grievance Commission of Maryland v. Stinson, 428 Md. 147, 164 (2012) (“Respondent asserts that because the contract was clear and unambiguous, the $5,000.00 fee did not have to placed in an attorney client trust fund since the payment was non-refundable and therefore did not belong to the client. This court rejects Respondent’s contention”); Attorney Grievance Commission of Maryland v. Lewis 437 Md. 308 (2014) (“Respondent violated Rule 1.15(a) when he failed to deposit and maintain Ms. Slosser’s retainer fee in trust until earned without receiving informed consent, confirmed in writing, to a different arrangement from Ms. Slosser”).
The March/April 2014 Maryland Bar Journal contains Stewart A. Sutton’s article that an attorney who has violated the Maryland Lawyers’ Rules of Professional Conduct should not sue a former client for legal fees owed. The article contains a comprehensive analysis that an attorney only earns his or her fees when the attorney’s conduct conforms with the Rules of Professional Conduct. If the attorney was terminated for violating the Rules of Professional Conduct or if the client discovers the attorney’s violation after the representation has concluded, the client has a meritorious claim that the attorney has not earned any fees. See Abramson v. Wildman 184 Md.App. 189, 207 (2009) (“As a matter of policy, a lawyer should be regarded as ‘earning’ his or her fee only when he or she provides legal services to his or her client in a manner consistent with his or her professional duties”). In such situations, the client can sue the former attorney for breach of contract for the return of all legal fees paid.
The following article was written by my former client as part of a college class on research and survey design:
Several years ago, I had the misfortune of being involved in a protracted legal dispute. The entire experience was made infinitely worse by the first two attorneys that I retained. The first attorney, a highly regarded and extremely expensive Rockville attorney, was too busy to perform the necessary work on my case. I then interviewed 3 replacement attorneys. I made the rookie mistake of retaining a Bethesda attorney, who excelled at marketing herself and self-promotion, but lacked the sufficient legal skills and expertise to properly represent me.
After an exhaustive search, I then retained Stewart A. Sutton. What a difference the right attorney makes. He reviewed and personally organized my legal file and documents; he conferred with me to make sure that he understood the facts of my case; he researched and explained the applicable law to me; and he developed a new legal theory to resolve my case. As a result of Stewart A. Sutton’s efforts, I was able to settle my complex legal dispute quicker, more favorably, and less expensively than I had ever expected.
The lesson that I learned is that the right attorney will be able to resolve your legal problem in a favorable and expeditious manner. The wrong attorney will prolong your legal problems or make them worse. This makes the selection of your attorney a critical step in the process of solving your legal issues.
So that others do not repeat my mistakes, I wanted to determine how a person should go about retaining an attorney. In conjunction with a college course I was taking on surveys and research, I designed and undertook a study to answer my question.
My methodology was simple. I obtained the names and addresses of a wide cross-selection of former clients from recently closed civil court files from Montgomery County Circuit Court. I then interviewed the clients regarding whether or not they were satisfied with their former attorneys. I obtained basic characteristics of the attorneys from their former clients, the attorneys’ website, and other public databases. I then compared the characteristics of the attorneys from satisfied clients with the characteristics of the attorneys from dissatisfied clients.
The results were astonishing. I found that the attorneys for the satisfied clients shared many common characteristics. I have distilled my findings into 6 areas of inquiry and 15 essentials questions that a client needs to ask to retain the right attorney.
I. Survey Questions
Step 1: GRADUATE OF A TOP RATED LAW SCHOOL
The first step is to select an attorney who attended a top rated law school. There are 200 law schools in the United States. Select an attorney who attended one the top 20 law schools as ranked by U.S. News and World Report.
Top rated law schools have a highly selective admission process; and graduation from one of these schools assures that the attorney has received a first rate legal education. While the University of Maryland produces many fine lawyers (Ranked No. 48), you are more likely to be satisfied with graduate from these local law schools: University of Pennsylvania (No. 7); University of Virginia (No. 10); Duke (No. 11); Georgetown University (No. 14); and George Washington (No. 20).
The other schools in the top ten are: Yale; Harvard; Stanford, Columbia, University of Chicago; New York University; Berkeley; and University of Michigan. The remaining schools in the top 20 are: Northwestern; Cornell; UCLA; University of Texas; Vanderbilt; University of Southern California; and Washington University in St. Louis.
Questions for clients to ask:
1. Which law school did you attend? (top 20 law school)
2. When did you graduate? (12 or more years ago)
Step 2: LARGE FIRM EXPERIENCE
The best students from top rated law schools are recruited by prestigious law firms located in major cities. These large firms are structured to train young lawyers to gain the necessary skills to practice law.
Questions for clients to ask:
3. Where did you work after you graduated law school? (a prestigious or well known law firm)
4. How many attorneys worked at the law firm? (50 or more)
5. Where was the law firm located? (a city with a population over 500,000)
6. How long were you employed at this law firm? (5 or more years years)
Step 3: BEGAN OWN LAW FIRM
After working at least 5 years at a large law firm, a lawyer has acquired sufficient skills to represent clients without supervision. A small fraction of such lawyers will eschew the high pay and prestige of working at a downtown law firm and start their own legal practice in suburban areas.
An attorney who starts his or her own firm is both confident and ambitious. You are looking for an attorney is a founding member of the firm and has been self-employed for at least 3-years.
Questions for clients to ask:
7. Are you a founding member of this firm? (yes)
8. When did you start your firm (3 or more years ago)
Step 4: SMALL FIRM
Small law firms (1 to 3 lawyers) have a distinct advantage over large firms. Small law firms have less overhead, less staff to supervise, and are less likely to become overextended with too many clients. A high attorney-to-staff ratio ensures that the attorneys are performing the work, not paralegals or secretaries.
Questions for clients to ask:
9. How many attorneys work at your firm? (1 to 3)
10. How many staff do you directly supervise? (0 or 1)
Step 5: NON-MATERIALISTIC
Many lawyers deliberately attempt to create the impression that they are successful by displaying their extravagant lifestyle. They drive high-end luxury vehicles, wear designer clothes and expensive jewelry, and live in high priced homes. The problem arises when lawyers live beyond their means. Such lawyers have a dysfunctional incentive to take on more cases than he or she can possibly handle. The hallmark of an overextended lawyer is providing low quality legal service to a high number of clients and charging excessive fees.
A non-materialistic lawyer is not concerned with creating the impression that he or she is successful by displaying ostentatious badges of wealth. The hallmark of a non-materialistic lawyer is providing high quality legal services to a small number of clients. Such lawyers can afford to turn away business, because they are not burdened with an extravagant lifestyle overhead.
Questions for a client to ask:
11. What type of vehicle does the lawyer drive? (under $30,000)
12. What type of watch does he or she wear? (under $250)
Questions concerning the attorney’s personal property can easily be worked into your initial interview with your prospective lawyer. You might say that you admire the attorney’s watch and inquire as to the manufacturer. You may inform the attorney that you are thinking about buying a new car, solicit his or her advice, and then ask him or her what type of vehicle he or she drives.
Step 6: Acknowledged legal expertise
A non-materialistic attorney wants to impress clients, colleagues, and judges with his or her legal knowledge and skills. Such lawyers write legal books or articles for law journals, teach other lawyers at seminars, and serve as expert witnesses in court cases.
Questions for a client to ask:
13. Have you written a book or an article for law journal? (yes)
14. Have you taught other lawyers at a seminar or conference? (yes)
15. Have you testified in court as a legal expert? (yes)
II. INTERPRETING THE SURVEY RESULTS
The clients who were most satisfied with their attorneys had affirmative responses to 12 or more of the questions. The clients who experienced the least amount of satisfaction had affirmative responses to 6 or fewer questions. Clients who had between 7 and 11 affirmative responses generally had a neutral experience with their attorney.
My findings are only preliminary in nature. A comprehensive study will have to be conducted to validate my results. My recommendations may only be applicable to clients who are seeking to retain an attorney in Montgomery County, Maryland.
Based upon anecdotal evidence of friends who have used my recommended methods for retaining an attorney, my advice increases the probability that the client will be satisfied with his or her attorney.