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The “USE” Plaintiff (Continued from page 11)


identifying these other “use” plaintiffs, he or she is required to notify them of the pending litigation by sending them a copy of the complaint. These require- ments may result in counsel retained by the plaintiffs in obtaining information which completely disqualifies the client who originally retained the attorney from bringing the lawsuit.1


Suppose,


for example, plaintiff ’s counsel is hired by the decedent’s sister and niece, both of whom were pooling their assets with the decedent in order to pay bills and thus were “substantially dependent” on the decedent and accordingly qualify as secondary beneficiaries. See Ditto v. Stoneberger, 145 Md. App. 469, 805 A.2d 1148 (2002). If counsel locates and notifies any primary beneficiary, even a spouse separated for twenty (20) years with no intervening contact and whose claim is virtually worthless, this completely disqualifies all of the attor- ney’s deserving secondary beneficiary clients. Having learned this informa- tion, serious ethical implications arise if such information is withheld from opposing counsel or the court. See The Maryland Lawyers’ Rules of Professional Conduct Rule 3.3 (“Candor Toward the Tribunal”), Rule 3.4 (“Fairness to Opposing Party and Counsel” and Rule 4.1 (“Truthfulness in Statements to Oth- ers”). The same real or potential conflict of


interest exists when counsel for the pri- mary beneficiaries locates and notifies other primary class beneficiaries who now will compete for what often are the same limited liability insurance policy limits or assets. Even more troublesome is the “free ride” “use” plaintiff who


1


The author sent a draft copy of this article to a noted Maryland legal ethics guru, Alvin I. Frederick, Esquire, and asked his assistance in composing a sample let- ter that might address these preliminary ethical concerns. Attached to this article is the collaborative effort of the author and Mr. Frederick to provide a suggested form letter for this purpose.


Fall 2008 Trial Reporter 13


does not hire an attorney, who refuses to contribute to costs, who refuses to agree to share the responsibility for attorney’s fees, and who insists on participating in the settlement or judgment, whether the case is settled or tried. The attorney who notified this primary class beneficiary in the first place has no fee contract or agreement with this person and cannot directly collect a fee nor require this person to participate in payment of any costs associated with the litigation, absent a written fee agreement. The Maryland Lawyers’ Rules of Professional Conduct Rule 1.5 (“Fees”). While the other primary class beneficiaries may have a quantum meruit claim against the “free ride” “use” plaintiff, the at- torney who created the problem in the first instance by complying with the Rule may be powerless to alter the “free ride” problem. Note, however, that Maryland recog-


nizes the “Common Fund Doctrine” as a common law exception to the “American Rule” which requires each litigant to be


responsible for his or her own attor- ney’s fees. Under the “Common Fund Doctrine,” a litigant or a lawyer who re- covers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole. See United Cable Television of Baltimore Limited Partnership v. Burch, 354 Md. 658, 732 A.2d 887 (1999) and Garcia v. Foulger Pratt Development, Inc., 155 Md. App. 634, 845 A.2d 16 (2003). In United Cable Television of Baltimore Limited Partnership, supra, the Court of Ap- peals held that a fee agreement was not needed to assess attorney’s fees under the Common Fund Doctrine and further that the presence of a one-third contin- gency fee agreement with a represented party did not limit the circuit court in determining “reasonable attorneys fees” as to the unrepresented party. While the Common Fund Doctrine has not yet been applied to a wrongful death case


(Continued on page 15)


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