Prande, 105 Md. App. at 656, 660 A.2d at 1065.


As a case of first impression, the Court


remanded the matter granting the plain- tiff leave to amend her complaint as necessary to comport with the Court’s holding.


THOMAS v. BETHEA


The plaintiff in Thomas was involved as a minor in a lead paint poisoning ac- tion brought by her mother against three landlords. For some reason not evident from the opinion, one of the three defen- dants was not served with process.


1983, the two served defendants offered a settlement totaling $2,500 conditioned upon a release of all three defendants. The plaintiff’s mother accepted the settle- ment upon the recommendation of their attorney.13 In 1995, the now adult plaintiff sued her former attorney alleging that his fail- ure to properly investigate, prosecute and litigate her claim, and his recommenda- tion to settle, caused her mother to accept the “grossly inadequate” sum of $2,500 in full settlement of her claims.14


settlement, and that the plaintiff sustained $125,000 in damages from exposure to lead paint at the subject property.17


Con-


cluding that the proper measure of damages is the amount the case reason- ably would have settled for in 1983, and finding no evidence of what a reasonable settlement would have been, the trial court entered judgment NOV for the de- fendant attorney.18


In an unreported In


decision, the Court of Special Appeals, applying Prande, reversed the trial court stating that the value (and collectibility) of a lost cause of action is an issue for the jury to decide, and holding that the jury had decided that the value was $125,000. On Certiorari, a majority of the Court


of Appeals, speaking through Judge Wilner (who had participated in Prande) observed that over a dozen states have considered whether a client may sue his or her attorney for a settlement recom- mendation, and that a great majority reached decisions consistent with Prande without applying any heightened negli- gence standard to do so.19


Although After


Prande was issued, the plaintiff amended her suit to allege that her attorney’s settle- ment recommendation was one that no reasonable attorney would have made af- ter conducting a reasonable investigation of the facts and law. Later, the plaintiff stipulated that the


breach of the standard of care only related to the release of the claim against the un- served defendant.15


Thus, she accepted


as fact that $2,500 was adequate compen- sation for her claims against the two served defendants, but contended that it was unreasonable for her attorney to have rec- ommended surrendering the claim against the unserved defendant for no compen- sation at all.16 The jury issued a special verdict find- ing that the settlement recommendation was one that no reasonable attorney would have made, that a reasonable attorney would have recommended a $25,000


13


Thomas v. Bethea, 351 Md. 513, 515-16, 718 A.2d 1187, 1188 (1998).


14Id. at 516, 718 A.2d at 1188-89. 15Id. at 516-17, 718 A.2d at 1189.


16


The plaintiff presented evidence that her mother had informed the landlord that the plaintiff had an elevated lead level before entering into the lease, that the landlord as- sured the mother that the property had no lead paint, that the property indeed did have flaking lead paint, and the landlord had $300,000 in insurance. Id.


Winter 2000


“sharing the concern” expressed in Prande that lawyers are not be considered negli- gent “simply because another lawyer, or even most lawyers, with the benefit of hindsight” would not have made the rec- ommendation at issue, and recognizing that a “range for honest differences of opinion” can exist in such matters, the Court rejected what it described as Prande’s “heightened standard” of negli- gence for malpractice claims involving attorney judgment calls: Nonetheless, we see no reason to adopt any heightened standard of negligence. Lawyers, like doctors and other pro- fessionals are often called upon to make judgment calls with which their colleagues may disagree. Those calls, if challenged, can be examined in the light of the traditional standard appli- cable to professional negligence actions.


Thomas, 351 Md. at 529, 718 A.2d at 1195.


Thereafter, the Court analyzed the damages available for a claim of negligence in advising settlement. The Court noted one measure of damages could be the dif- ference between what reasonably could have been obtained in settlement and what was in fact obtained. It was noted, however, that evidence of what the defen- dant in the underlying case would have


17Id. at 517-18, 718 A.2d at 1189. 18Id. at 518, 718 A.2d at 1189. 19Id. at 520, 718 A.2d at 1191.


Trial Reporter


The defendant in the underlying case is unlikely to admit he would have paid substantially more if the lawyer held out and evidence from others regarding settlement value or the actual prospects of settlement has been rejected by some courts as speculative.21 Thus, the Court observed that it is common for plaintiffs to assert that given the inadequacy of the settlement offer, the lawyer should have recommended the case be pursued to adjudication, and when the case is presented under such a theory the measure of damages is the difference be- tween the settlement obtained and the amount that likely would have been re- ceived from the adjudication, normally as determined through a “trial within a trial” or “suit within a suit.”22 The Court noted that to prevail in the


been willing to pay is not easy to pro- duce.20


“trial within a trial” approach, the plain- tiff must prove: 1) negligence in recommending settlement; 2) that the landlord was liable under the theory pled and had no exculpatory defenses; 3) that the plaintiff suffered compensable dam- ages; and, 4) the amount of damages that: (i) would have been awarded by the jury had the underlying case gone to trial and (ii) would have been collectible with rea- sonable effort.23


On the record before it,


the Court determined there was sufficient evidence to justify the jury’s verdict for $125,000, and thus affirmed reversal of the trial court’s entry of judgment NOV. In a stinging concurrence and dissent,


Judge Chasnow, joined by Judge Cathell, who himself had participated in Prande, bitterly complained that the “trial within a trial” approach approved by the major- ity was a “debacle within a trial” and warned:


Any attorney who has ever settled a plaintiff’s case or contemplates settling a plaintiff’s case should carefully read the majority’s opinion. As a result of this decision, any plaintiff who has accepted an attorney’s advice to settle a claim merely has to find another attorney to opine that the settlement was inadequate and should not have been recom- mended. This should not prove too difficult. The client can then file suit to seek the verdict value of the case with- out the risks and costs that would have


(Continued on page 28)


20Id. at 532, 718 A.2d at 1196. 21


See, e.g., Fuschetti v. Bierman, 128 N.J. Su- per. 290, 319 A.2d 781 (1974).


22Thomas, 351 Md. at 533, 718 A.2d at 1197. 23Id. at 534-35, 718 A.2d at 1197-98.


27


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