Maryland Legal Malpractice Attorney
When an attorney commits an error,
it is the client who suffers.
Due to his strong commitment to professional ethics, Stewart Andrew Sutton represents clients in legal malpractice cases against their former civil attorneys as well as fee dispute cases. He has obtained numerous settlements and judgments for his clients throughout Maryland. Stewart Andrew Sutton’s success rate in obtaining a recovery in legal malpractice cases and a reduction in the amount owed or reimbursement in fee dispute cases is 100%.
The purpose of this website is two-fold. First, it informs Maryland consumers on how to protect themselves from unethical and unscrupulous attorneys. Secondly, the website educates Maryland attorneys on how to comply with their professional obligations.
I. LEGAL MALPRACTICE
Legal malpractice occurs when a client is financially and/or emotionally harmed by the failure of the attorney to render competent legal services. Common errors committed by attorneys include the following:
- Missing a filing deadline, which results in the dismissal of the client’s case.
- Providing erroneous or incompetent legal advice, which causes the client to suffer financial harm.
- Not informing the client that he has a professional or personal conflict of interest.
- Advising a client to a reject a favorable settlement offer, when the attorney should have known that the client would lose at trial.
- Advising a client to accept an inadequate settlement offer, because the attorney has not prepared for trial.
- Concealing material matters from the client during litigation, which if the client had known the truth about would have caused the client to have acted in a different way, such as settling the case or terminating the attorney.
An attorney’s malpractice is sometimes obvious, such as when a client’s case is dismissed for missing a filing deadline. Other times, the client may not discover the attorney’s legal malpractice until years later.
In Maryland, a client has 3-year from the time he or she discovered or should have discovered the attorney’s malpractice to file a malpractice lawsuit. For example, Stewart A. Sutton represented a client whose divorce attorney caused her to believe that he had taken all the necessary steps for her to receive half of her husband’s retirement account pursuant to the parties’ separation agreement. The client discovered years later that her divorce attorney had failed to prepare the proper Order to divide her husband’s retirement account; and Stewart A. Sutton obtained a settlement from the divorce attorney for the full amount of the retirement benefits that the client had lost.
A. LEGAL MALPRACTICE REMEDIES
1. ATTORNEY’S FEES
When an attorney commits malpractice, the client is entitled to recover some or all attorney’s fees that he or she had has paid to the lawyer.
2. CONSEQUENTIAL DAMAGES
a. Financial or monetary damages
In a legal malpractice case, the client may recover all monetary damages that were proximately caused by the attorney’s legal malpractice. For example, Stewart Andrew Sutton represented a client whose breach of contract claim against his health insurance provider was dismissed as a result of the attorney’s failure to file the lawsuit prior to the expiration of the statute of limitations. The client’s economic or monetary damages against the attorney was the amount that the client would have recovered against his health insurance provider.
b. Mental or emotional distress damages
In many cases, the client is entitled to compensation for his or her emotional or mental distress caused by the attorney’s legal malpractice. Stewart Andrew Sutton once represented spouses who had retained a bankruptcy attorney to save their home from foreclosure, but they instead lost their home as a result of the bankruptcy attorney’s malpractice. The clients suffered emotional or mental distress from the dispiriting change in their living situation from being homeowners to being homeless. A Montgomery County jury awarded $100,000 in emotional distress damages to Stewart A. Sutton’s clients.
A client typically suffer emotional or mental distress when the attorney’s malpractice causes the client to fear and/or suffer a change in his or her living situation (i.e., loss of home, loss of child custody, deportation, incarceration, etc.), which the attorney was retained to prevent
A client does not need to seek treatment from a psychotherapist to recover mental or emotional distress damages. It is sufficient that the client testify that his or her mental or emotional distress has been manifested with physical symptoms, such as depression, sleeplessness, weight loss, etc.
3. PUNITIVE DAMAGES
An attorney is subject to punitive damages when the attorney intentionally misrepresents a material fact to his client or fails to disclose material fact to his or her client. An attorney has an professional and contractual duty to keep his or her client reasonably informed of the status of the case and to disclose all material facts to the client.
Stewart A. Sutton has represented many clients who have sued their former attorneys for either intentional misrepresentation and/or fraudulent concealment. In one such case, the client was awarded $100,000 in punitive damages, because the former attorney had intentionally misrepresented that he had filed a lawsuit on behalf of the client when in fact a lawsuit had never been filed.
An attorney who commits fraud may be subject to criminal prosecution. Stewart A. Sutton was a key witness against a Maryland bankruptcy attorney, who pled guilty and was incarcerated for filing a fraudulent bankruptcy petition.
B. PROVING LEGAL MALPRACTICE
1. Expert witnesses
In most legal malpractice cases, another lawyer will be retained as an expert witness to testify that the client’s former attorney breached the standard of care. The expert witness will review client’s file and then render a professional opinion that the former attorney committed legal malpractice.
In some legal malpractice cases, an attorney’s malpractice is so obvious that an expert witness is not necessary. For example, it is within the common knowledge of laymen that an attorney has breached the standard of care when the attorney misses a filing deadline, which causes the dismissal of the client’s case.
2. Trial within a trial
When a client has been deprived of the opportunity to proceed to trial as a result of the attorney’s malpractice, the client will need to prove the amount of damages that he or she would have been awarded had his or her underlying case had gone to trial. For example, if the client’s personal injury case arising from an automobile accident is dismissed due to the attorney’s malpractice, the client will need to present his personal injury case during the legal malpractice trial. This is known as a “trial within a trial”.
C. RESOLVING LEGAL MALPRACTICE CASES
In legal malpractice cases, the parties usually agree to private mediation before a retired judge or well-respected attorney. The neutral mediator assists the parties in reaching a mutually beneficial settlement. In the course of his career, Stewart A. Sutton has attended hundreds of mediations with his clients. More often than not, the mediation results in the settlement of the case.
Almost all settlement agreements contain a confidentiality clause, which prohibits the client and Stewart A. Sutton from publicizing the nature of the legal malpractice case and the terms of the settlement. Stewart A. Sutton has successfully represented clients who have sued some of most renown and most notorious attorneys in Maryland.
In the event that the parties are unable to reach a settlement, the legal malpractice case will proceed to trial before a six person jury. Stewart A. Sutton has never lost a legal malpractice trial.
II. Fee Disputes
A fee dispute occurs when an attorney overcharges a client in either a contingency fee or an hourly rate case.
A. Contingency Fee Case
In most personal injury cases, the attorney is usually retained on a contingency fee basis, where the attorney will receive a percentage of any settlement or judgment. It is common for an attorney to charge a one-third contingency fee (33.33%) for a settlement reached prior to litigation and 40% contingency fee once a lawsuit has been filed.
Maryland Rule 19-301.5(a) states that a lawyer “shall not make an agreement for, charge, or collect an unreasonable fee” and sets forth the eight factors in determining whether a fee is reasonable. Under Maryland law, “the question of reasonableness of a contingency fee agreement . . . must be revisited after the fee is quantified or quantifiable and tested by the factors enumerated in Rule 1.5(a)”. Attorney Grievance Commission v. Pennington
355 Md. 61, 74 (1999). If the lawyer’s fee that appeared reasonable at the onset becomes excessive, the fee must be reduced. Attorney Grievance Commission v. Korotki
318 Md. 646, 664-665 (1990).
- Examples of Excessive Fees
For example, it would be unreasonable for an attorney to charge a 33.33% contingency fee in an automobile accident case where the driver’s insurer has admitted liability and immediately tendered the driver’s policy limits. In such a situation, the attorney has rendered insufficient legal services to justify a one-third contingency fee.
Where a client has been seriously injured, the payment of health insurance lien (or worker’s compensation) lien will substantially reduce a client’s net recovery. When the attorney’s net recovery exceeds the client’s net recovery, there is a strong possibility that the attorney’s fees are excessive. In such a situation, the attorney should voluntarily reduce his or her contingency fee.
2. Settlement Sheets
When an attorney disburses proceeds from a settlement or judgment, the attorney is required to “provide a written statement. . .showing the remittance to the client and the method of its determination”. See Maryland Rule 19-301.5(c). The client also has the right to request a complete accounting as to all deductions that the attorney has made from the gross settlement or judgment. See Maryland Rule 19-301.15(d).
If the client believes that the attorney’s contingency fee is excessive and/or the attorney has made improper deductions from the settlement or judgment, the client should immediately notify the attorney in writing that he or she is disputing the attorney’s fees and/or disbursement for expenses. Upon placing the attorney on notice of the fee and/or expense dispute, the attorney is required to maintain the disputed fees in his or her Attorney Trust Account until the matter is resolved. See Maryland Rule 19-408(b)(2) (stating that any portion of fee disputed by a client “shall remain in the [attorney’s trust] account until the dispute is resolved”).
B. HOURLY FEE CASES
There are numerous ways in which an attorney can overcharge a client who is paying by the hour, including:
- Phantom Billing
“Phantom billing” occurs when an attorney invoices a client for work that was never performed. An audit of the client’s file is necessary to detect phantom billing.
- Unnecessary Work
An attorney should not be compensated for performing work that was not reasonably necessary. An audit of the client’s file is necessary to determine whether the legal services were reasonably necessary.
- Block Billing
“Block billing” is when an attorney provides no description or an inadequate description of the work performed. For example, the attorney might have an entry on the invoice that states “case work” or “reviewed email”. Such billing entries are insufficient, because they do not inform the client of either the nature of the legal services performed, the source and nature of the communication, nor why the work was reasonably necessary. When an attorney block bills, the attorney may face difficulties in seeking to recover legal fees based on either contract or quantum meruit.A proper invoice from an attorney should be in a format that is clear and should be reasonably particular regarding the nature and the necessity of the legal services performed. Diamond Point v. Wells Fargo 400 Md. 718, 760 (2007) (“It goes without saying that attorneys who bill on a time basis should make their billings as detailed as reasonably possible, so that the client, and any other person who might be called upon to pay the bill, will know with some precision what services have been performed”).
- Lack of Contemporaneous Time Records
It is the responsibility of the attorney to maintain accurate billing records. This is accomplished by making contemporaneous billing entries. When a client does not receive a monthly bill, it may mean that the attorney is not maintaining contemporaneous time records. Without contemporaneous time records, an attorney will often resort to reconstructing the time records or backdating bills. The inherent inaccuracies of such reconstructed invoices should be resolved against the attorney.
- Large Billing Increments
Most attorneys bill in 0.1 hour (6 minutes) increments. When an attorney bills in 0.2 (12 minutes) or 0.25 hour (15 minute) increments, the amount billed does not reflect the actual work performed by the attorney. Such inflated bills are unacceptable and should be discounted.
- Duplication of Effort
Duplication of effort is not compensable. For example, when a firm has 2 attorneys attend a court hearing, the client should be billed only for the appearance of the senior attorney.
- Excessive Conferencing
At large law firms, junior attorneys report to senior attorneys. Unfortunately, this means that both attorneys bill the client for their meetings. While occasional conferences are often necessary, constant meetings are usually unproductive and wasteful.
- Billing Rate Increases
A law firm may not unilaterally increase its billing rate. Nevertheless, many firms increase their hourly on an annual basis without their clients’ permission.
- Change in Personnel
A client should not be charged for a new staff member or an newly assigned attorney to review the client’s file to get up to speed, because such effort does not advance the client’s cause. When the law firm assigns new staff, the additional costs associated with the change in personnel should be charged to overhead, not to the client.
- Excessive Supervising and Training
Law firms are always training new staff and attorneys. The law firm should reduce its hourly rate for the on-the-job training of its staff.