or written communication with the “use” plaintiff. And it clearly does not authorize solicitation of the “use” plaintiff in violation of Rule 7.3. 5. Before any settlement discussions can take place: (A) You must resolve any “use”
plaintiff issues in order to maxi- mize settlement potential. This may require the use of summary judgment or other relief provided for by the Rules. Where a “use” plaintiff is identified and has received notice, either the plain- tiff or the defense may initiate discovery with interrogatories and/or request for production of documents. When this discovery goes unanswered, the appropriate motion to dismiss for failure to provide discovery can then be filed. Consider also a cross-claim for quantum meruit or any other imaginative device to resolve the responsibility of the “free ride” “use” plaintiff. (B) You should attempt to
resolve among the beneficiaries the issue of their respective ap- portionment of any award. First, determine if the beneficiaries can agree in advance as to each party’s pro rata share of any settlement or judgment. Second, if you are un- able to obtain such an agreement, determine whether an agreement to apportion the award in the fu- ture can be reached which should include a vehicle for ultimately resolving the apportionment issue where no agreement can be reached. You must make clear that in the event the clients you represent cannot ultimately agree on either a percentage or monetary division, they must each obtain separate and new counsel to represent them on the apportionment issue. Ultimately, as set forth in Scamardella, the court has the ultimate authority to decide this issue in the absence of any other agreed upon resolu-
18
tion. The issue of apportionment is ideal for arbitration or media- tion.
6.
It is not likely that you can settle a case without the agreement and execution of a release by all of the parties, including any “use” plain- tiffs. If no agreement among the parties as to percentages or mon- etary amounts can be reached, you may have no choice but to try the case and have the jury in their ver- dict apportion the award. Although beyond the scope of this article, in the right circumstances, the use of a joint tortfeasor release with a willing defendant or defendants may permit settlement of the case for your clients without the agree- ment of the parties you do not represent.
7. While you do not have a fee con- tract or agreement to represent the “use” plaintiff, nor are you in privity with this party, you may still have a professional obligation and be accountable for legal malpractice under the “intended third party beneficiary” doctrine which has been held to apply to attorneys in certain factual circumstances. See Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618 (1985). Arguably, any such obligation should only extend to the naming of any “use” plaintiffs and the mailing of a copy of the complaint to the last known address as required by Rule 15-1001. How- ever, no cases have yet been decided on this obligation so no guidance is presently available as to the extent counsel must go to determine the existence and location of any “use” plaintiffs.
Conclusion My partner’s initial observation
should serve as a warning to all of us. This article is hardly exhaustive on the potential problems or on the solutions to those problems. Counsel should be wary and on guard for the poten- tial pitfalls that exist. Early proactive
Trial Reporter Fall 2008
steps to clean up the “use” plaintiff issues are important to reduce some of those problems. Constant vigilance is demanded as to the many ethical chal- lenges that may arise. n
About the Author
Robert R. Michael of Shadoan, Michael, & Wells, LLP in Rockville, Maryland, received h J.D. from the George Wash- ington University in 1971. He is a member of the very prestigious Inner Circle of Advocates and the Interna- tional Academy of Trial Lawyers. Mr. Michael is also a Fellow in the
American College of Trial Lawyers; a member of the select American Board of Trial Advocates; and has been listed since 1986, in the publications Best Lawyers in America; in Washingtonian Magazine as one of Maryland’s top medical malpractice lawyers; and as one of Maryland’s Top 10 Lawyers in the 50 Maryland Super Lawyers. Mr. Michael is a past president of the
Maryland Trial Lawyers Association; is a founder and was the first attorney president of the Montgomery County Chapter of the American Inns of Court in 1991. IN 2004, he received the “Trial Lawyer of the Year” award from the Trial Lawyers Association of Metropolitan Washington, D.C.
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