When should a client in Maryland fire a personal injury attorney?

As the client, you have the right to direct how your attorney handles your case. See Maryland Attorneys’ Rules of Professional Conduct at Md. Rule 19-302.2 (“an attorney shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means which they are to be pursued”).

When an attorney refuses to follow the client’s instructions, the client should consider terminating the attorney. Here’s a real example of a client who regretted that she did not immediately terminate her attorney after he refused to follow her instructions.

The client had retained a law firm to file a wrongful death case against the 2 drivers who were responsible for her son’s death. A Ford and Nissan had collided at high speed at a four-way intersection; the Ford veered off the road, jumped the curb, and struck and killed the client’s son, who had been standing on the sidewalk.   The police accident report stated that “Smith” had been driving the Ford and “Jones” had been driving the Nissan. Based upon the information contained in the police accident report, the attorney sued Smith and Jones.

A few months later, police body camera videos were obtained. The client reviewed these videos and determined that “Jones” could not have been driving the Nissan. The video showed “Jones” jogging to the scene of the accident. When a police officer initially approached a group of people and asked who the driver of the Nissan was, a lady pointed to “Garcia” and “Garcia” indicated that he was the driver. “Garcia” then explained to the police officer he had been waiting for a green light at the intersection and had been turning when his Nissan was struck at high speed by the Ford.

When the investigating police detective arrived at the scene, “Jones” and “Garcia” had changed their story. “Garcia” was now a passenger in the vehicle, and “Jones” had been the driver of the Nissan. “Jones” and “Garcia” were cousins, and “Jones” had a suspended driver’s license. In order to prevent his cousin from receiving a citation for driving with a suspended license, “Garcia” misled the police by stating that he was the driver.  “Jones” told the detective that he was a passenger in the Nissan.

The client informed her attorney that the wrongful death lawsuit needed to be amended to add “Garcia” as the actual driver of the Nissan. However, the attorney refused. For inexplicable reasons, the attorney thought that it made sense to sue the man who was not driving the Nissan and not sue the man who actually was driving the Nissan. The client should have terminated her attorney for refusing to obey her instructions.

The attorney then did nothing for more than one year to obtain discovery responses from “Jones” as to his role in the automobile accident. When “Jones” belated discovery responses were finally received 14 months after they were due, “Jones” stated that he was not the driver and that “Garcia” was the driver of the Nissan. “Garcia” substantiated his discovery responses by citing to the police body camera videos showing him jogging up to the scene of the accident and “Jones” initially admitting that he was the driver.

The attorney then amended the wrongful death complaint to include “Garcia” as the driver of the Nissan. Within weeks after the amended Complaint had been served on “Garcia”, the insurer of the Nissan offered its policy limits. The insurer for the Ford had previously offered its policy limits.

But for the attorney’s refusal to amend the complaint when the client initially told the attorney that “Garcia” had been the driver, it took an additional year for the wrongful death case to be resolved.  

An attorney has a professional and contractual duty to “act with reasonable diligence and promptness in representing a client”. Maryland Rule 19-301.3. “Even when the client’s interests are not affected in substance, however, unreasonably delay can cause a client needless anxiety and undermines confidence in the attorney’s trustworthiness”. Comment 3 to Rule 19-301.3.  An attorney also has a corresponding duty to “make reasonable efforts to expedite litigation consistent with the interests of the client”. Maryland Rule 19-303.2.

Litigation is usually incredibly stressful and frustrating for clients. As a result of the attorney’s lack of diligence, the client needlessly suffered an additional year of anxiety and stress arising from the wrongful death litigation.  

The Maryland Supreme Court has held in many cases that an attorney’s delay of a little of six weeks constitutes lack of diligence and/or a failure to expedite litigation. See Attorney Grievance Commission v. Rose, 391Md. 101 (2006) (holding that an attorney’s delay in filing a client’s divorce complaint for 6 weeks constituted an unreasonable delay); Attorney Grievance Commission v. Calhoun, 391 Md. 532, 558 (2006) (an attorney violated Rule 1.3 by delaying 9 months in filing a complaint on behalf of a client); Attorney Grievance Commission v. Kreamer, 404 Md. 282, 324 (2008) (“Ms. Kreamer’s failure to advise Mr. Boone of Judge Carr’s Order of June 12, 2004, for over three months demonstrates an appalling lack of diligence in violation of Rule 1.3″); Attorney Grievance Commission v. Gray, 436 Md. 513, 520 (2014) (holding an attorney violated Rule 1.3 by failing to propound discovery regarding client’s claim that her husband was concealing assets).

AFTER A MARYLAND PERSONAL INJURY ATTORNEY IS TERMINATED, THE ATTORNEY IS NO LONGER ENTITLED TO A CONTINGENCY FEE

If a personal injury attorney is terminated without good cause, the attorney is entitled to a quantum meruit recovery. Skeens v. Miller 331 Md. 331, 340 (1993) (“We have repeatedly held that an attorney discharged without cause is entitled to be compensated for the reasonable value of his legal services rendered prior to discharge”).

Quantum meruit is the measure of damages in situations where the parties do not have a written agreement or their written agreement is unenforceable, such as in this case where a personal injury attorney was terminated prior to the occurrence of the contingency. Mogavero v. Silverstein 142 Md.App. 259, 275 (2002) (“An implied-in-fact contract is a true contract and means that the parties had a contract that can be seen in their conduct rather than in an explicit set of words”). For an implied-in-fact contract, the measure of damages is the “reasonable value of the services” rendered. Id.

The Court applies the eight factors listed in Maryland Rule 19-301.5 (fees) in “determining the reasonable value of the services of a discharged client”. Somuah v. Flachs, 352 Md. 241, 265 (1998). The determination of the reasonable value of the legal services performed prior to an attorney’s discharge is a question of fact. Head v. Head 66 Md.App. 655, 669 (1986).  

WHEN A MARYLAND PERSONAL INJURY ATTORNEY  IS DISCHARGED FOR CAUSE, THE ATTORNEY EITHER FORFEITS ANY RIGHT TO A QUANUM MERUIT RECOVERY OR IS ONLY ENTITLED TO A REDUCED RECOVERY

In Maryland, it is well established in Maryland that “[i]f the attorney is discharged for cause in a situation in which the attorney commits serious misconduct, he will receive no compensation”.   Scamardella v. Illiano 126 Md.App. 76, 95 (1999); Somuah v. Flachs 352 Md. 241, 264 (1998) (holding that a “quantum meruit recovery may be inappropriate where an attorney engages in misconduct, prejudicial to the client, for which the attorney may be disciplined, or recovery by the attorney would be contrary to public policy”).

Respected commentators have also held that the forfeiture of an attorney’s fee is appropriate without regard to whether the attorney’s breach of his ethical duties resulted in economic damages to the client. Restatement (3rd) of the Law Governing Lawyers § 37 cmt. d (2000) (“But forfeiture is justified for a flagrant violation even though no harm can be proved”); Thomas D. Morgan, Sanctions and Remedies for Attorney Misconduct, 19 S. ILL. U.L.J. 343, 351 (1995) (“[T]he fee forfeiture sanction is available even where a client has suffered no loss as a result of an attorney’s alleged misconduct”).

Alternatively, the court can reduce an attorney’s quantum meruit recovery based upon the seriousness of the attorney’s misconduct and the harm to the client: “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; consequently, a lawyer’s improper conduct can reduce or eliminate the fee that the lawyer may reasonably charge”.  Abramson v. Wildman, 184 Md.App. 189, 207 (2009) (quoting 7 Am.Jur.2d Attorneys at Law § 262 (2007)); Somuah v. Flachs, 352 Md. 241, 264 (1998) (“Where an attorney has been discharged for cause but that cause does not justify forfeiture, some courts have reduced the quantum meruit recovery of the attorney by a percentage due to the ‘nature and gravity of the cause leading to discharge.’”

 

 

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