Recommending a Settlement (Continued from page 25)


but was not.’ We refuse to endorse a rule that will discourage settlements and increase the number of legal mal- practice cases. A longstanding principle of our courts had been to encourage settlements; we will not now act so as to discourage them.


Prande, 105 Md. App. at 653, 660 A.2d at 1063-64, quoting Muhammad, 526 Pa. at 548, 587 A.2d at 1349. Although recognizing that Maryland too has a strong public policy encourag- ing settlements, the Court of Special Appeals rejected Muhammad’s approach as “patently unfair” to persons aggrieved


by attorney malpractice.6


Muhammad,


526 Pa. at 554-55, 587 A.2d at 1352-53. The Court opined that it is unlikely that the possibility of malpractice suits would discourage attorneys from recommending settlement because “settlements still are in the best interests of the clients.”7


Nei-


ther did the Court believe that allowing such claims would result in an increase in malpractice actions inasmuch as negligent advice is not a new claim or theory of re-


6


Castigating the majority for granting near immunity to attorneys, the dissent in Muhammad stated:


The majority has just declared a 5


The Court of Special Appeals held that set- tling the underlying actions did not raise a collateral estoppel to her negligence claim against her attorneys inasmuch as the plain- tiff did not have a full and fair opportunity to litigate the question of her attorneys’ neg- ligence in the underlying actions. Id. at 652- 53, 660 A.2d at 1063.


“LAWYER’S HOLIDAY” ... It’s Christmastime for Pennsylvania lawyers. If a doctor is negligent in saving a human life, the doctor pays. If a priest is negligent in saving the spirit of a human, the priest pays. But if a lawyer is negligent in advising his client as to a settlement, the client pays.... Thus, “filthy lucre” has a higher priority than human life and/or spirit. The majority calls this “Public Policy.” Maybe ... Maybe not?? It sure expedites injustice. Should we change the law so that non_lawyers can be judges?


7


Prande, 105 Md. App. at 654, 660 A.2d at 1064.


covery and plaintiffs still must allege and prove the facts in support of their claims.8 Curiously, having stated its belief that


the threat of malpractice would not dis- courage settlements or lead to an increase in litigation, the Court then expressed it is nevertheless “mindful” of the concerns expressed in Muhammad — that allow- ing malpractice claims after settlement could lead to chaos because lawyers may become reluctant to settle and could re- sult in substantial increase malpractice litigation — and observed that settlement advice is unlike other failings that have been held to constitute malpractice, such as missing a statute of limitations, failing to do adequate research and preparation, missing a deed or encumbrance during a title search.9


The Court noted that settlement ad- vice by its very nature “involves a judgment call” lacking any “bright line” by which malpractice can be evaluated. The factors one must evaluate in making a settlement recommendation, like the recommendation itself, are subjective in nature and not easy to quantify.10


Thus,


“the lawyers’ overall knowledge and ex- perience” is involved in settlement recommendations, and that knowledge and experience varies among attorneys thereby creating “a range for honest dif- ferences of opinion” regarding the merits of settlement.11


As a result, “[a] recom-


mendation to settle or not to settle on particular terms is not malpractice sim- ply because another lawyer, or even many other lawyers, would not have made the same recommendation under the alleged circumstances.”12 In light of the degree of judgment in-


volved in recommending settlement, the Court of Special Appeals declared: In order to guard against the concerns expressed in Muhammad, we hold that in order to state a cause of action for legal malpractice based on a recom- mendation that a case be, or not be, settled, the plaintiff must specifically allege that the attorney’s recommen- dation in regard to settlement was one that no reasonable attorney, having undertaken a reasonable investigation into the facts and law as would be ap- propriate under the circumstances, and with the knowledge of the same facts, would have made.


8 Id.


9 Id. at 655, 660 A.2d at 1064-65. 10Id. at 655-66, 660 A.2d at 1065. 11Id. at 656, 660 A.2d at 1065. 12Id.


26 Trial Reporter Winter 2000


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