Ethics


the hold-up may arise due to the asserted interest of a third party such as a medical provider or other creditor of the client, who may not be particularly receptive to the idea of having to honor such an interest. Notwithstanding the client’s objection, Rule 1.15(d) imposes duties of notification, delivery (payment) and, upon request, accounting that extend to third persons as well as clients. When a dispute arises over funds “in which two or more persons (one of whom may be the lawyer) claim interests,” Rule 1.15(e) requires that “the property shall be kept separate [i.e., maintained in the lawyer’s trust account] until the dispute is resolved.” Te lawyer is required to distribute promptly any portions of the funds held in trust that are not in dispute. When facing a client-third party dispute that cannot be resolved through negotiation, Comment 5 to Rule 1.15 suggests that “[a] lawyer should not unilaterally assume to arbitrate” the dispute, but when there are substantial grounds for the dispute, “the lawyer may file an action to have a court resolve the dispute.” With regard to the calculation of a lawyer’s contingent


fee upon conclusion of a case, that calculation must be made in accordance with the applicable percentage set forth in the written fee agreement signed by the client. Comment 3 to Rule 1.5 notes that contingent fees, like any other fees, are subject to the reasonableness standard of Rule 1.5(a). While the contingent percentages


“customarily charged in the


locality for similar legal services,” Rule 1.5(a)(3), ordinarily will be viewed as reasonable, other factors may still have to be considered. When a case reaches its conclusion and the contingent fee may be quantified, the contractual percentage, which may have seemed reasonable when agreed upon, may turn out to be for a dollar amount that is excessive. As an example, in Attorney Grievance Commission v. Korotki, 318 Md. 646 (1990), the Court of Appeals cited an Arizona case in which a plaintiff’s attorney’s one-third fee of $50,000 was deemed excessive where the client’s case was settled for $150,000 within months following an accident that resulted in amputation of the client’s leg. Because there was a workers’ compensation lien of almost $90,000, it was unreasonable for the lawyer to collect a $50,000 fee and leave his client with a net recovery of only $10,000.


A Cautionary Tale Despite your best efforts to handle each case competently


and diligently, mistakes do occasionally occur. When faced with a situation in which there has been neglect of a case, possibly providing grounds for a legal malpractice claim, two things certain to make a bad situation worse are (1) lying to or misleading your client, whether by active misrepresentation or concealment of information, and (2) ignoring Bar Counsel


Admiralty / Maritime


Architecture / Premises Safety Aviation


Biomechanical Engineering


Construction Claims / Injuries Crash Reconstruction


Dram Shop / Liquor Liability Education / Supervision Electrical Engineering


Environmental / Toxic Torts Fire / Explosion Human Factors HVAC / Plumbing


Occupational Health / Safety Product Liability


Sports and Recreation Toxicology


Vehicle Engineering 800.813.6736 | www.robsonforensic.com


when he asks for your response to the client’s complaint. In Attorney Grievance Commission v. Bleecker, 414 Md.


147 (2010), an attorney failed to file suit on behalf of a personal injury client within Maryland’s three-year statutory limitations period. On July 14, 2006, he filed a civil complaint that inaccurately averred the date of accident as November 25, 2003 rather than the actual date of November 25, 2002. Although the hearing judge did not find that the respondent knowingly and intentionally misrepresented the accident date, the Court of Appeals found a violation of Rule 3.3(a)(1) based on the respondent’s failure to correct the misstatement contained in his pleading after the error was brought to his attention. Moreover, the respondent failed to disclose the limitations bar on the claim to his client for over a year after he became aware of it and concealed information about the court’s dismissal of the civil action from the client, who only learned of the dismissal several months later through a third party. Te Court of Appeals held the respondent’s concealment of material information from the client to be dishonest and deceitful in violation of Rule 8.4(c), in addition to such failure violating the communication requirements of Rule 1.4. At a subsequent meeting with the client, the respondent also failed to advise the client to seek the advice


Trial Reporter / Winter 2012 19


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68