Avoiding Conflicts (Continued from page 34)
the representation in connection with settling the case, is Scamardella v. Illiano, 126 Md.App. 76, 727 A.2d 421, cert. den., 354 Md. 115, 729 A.2d 406 (1999). Scamardello involved a fatal automo-
bile accident in which Gloria Illiano was killed. Her mother, Giuseppina Scar- madella, and child, Sara Illiano, were also in the car and suffered injuries. An at- torney undertook the representation of Fausto Illiano, individually (as husband of Gloria Illiano) and as father and next friend of Sara Illiano, i.e., as wrongful death beneficiaries and for Sara Illiano’s own injuries and of Fausto Illiano, as personal representative of Gloria
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Illiano’s estate. He also undertook rep- resentation of Gloria Illiano’s mother and father, Cresenzo Scarmadella and Giuseppina Scarmadella, as wrongful death beneficiaries, and of Giuseppina Scarmadella for her own injuries. The attorney obtained an offer of
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PAETEC proudly supports the Maryland Trial Lawyers Association
PAETEC proudly supports the Maryland Trial Lawyers Association
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settlement that represented the full in- surance coverage of the defendants. The attorney recommended that his multiple clients accept that overall settlement of- fer. No apportionment of the settlement proceeds among the attorney’s clients was proposed at that time, but it was proposed that the clients would later agree to a division of the settlement. The possibility that the clients would
not be able to agree was also contem- plated and discussed. The attorney told
that clients that if this occurred he would no longer represent any of them, and they would have to retain other counsel after which the court would apportion the settlement if the parties could not reach agreement through their new counsel. Although later an issue of debate, it
appears that the clients agreed to this approach, although not in writing. In accordance with this agreement, the at- torney accepted the settlement offer on behalf of all his clients. The attorney offered his own proposal as to an alloca- tion of the settlement funds with regard to his clients’ respective claims. The attorney’s proposal was that 90%
of the settlement proceeds go to the claims of Fausto Illiano, Sara Illiano and the estate of Gloria Illiano and 10% to the claims of Cresenzo Scarmadella and Giuseppina Scarmadella. Mr. and Mrs. Scarmadella rejected the attorney’s pro- posal, after which the attorney informed his clients that they should each retain independent counsel. When it became apparent that the
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For more information, call PAETEC today at 443.573.6992.
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former clients, through new counsel, could not agree on an allocation of the settlement proceeds, the attorney filed a Motion to Allocate the Proceeds of Settlement and withdrew from further participation. The trial court held a plenary hearing and received evidence regarding the injuries sustained by the respective parties. The court allocated the settlement proceeds in a manner consistent with its conclusions as a trier of fact.5 After the proceedings in the trial
court, the Scarmadellas, who were disap- pointed in the outcome, noted an appeal. They sought to set aside the settlement based upon the attorney’s alleged viola-
5
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36 Trial Reporter
The court allocated the gross proceeds in a manner roughly consistent with the al- location previously proposed by counsel, i.e., 92.25% to the claims of Fausto Illiano, Sara Illiano and the estate of Gloria Illiano and 7.25% to the claim of Giuseppina Scarmadella. Apparently, the court did not allocate any portion of the recovery to the claim Cresenzo Scarmadella. The opinion is unclear as to the reason for this. Scarmadella, 126 Md. App. at 83.
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