Wednesday, November 7, 2007

Choose Your Lawyer Wisely: Trust But Verify

A lawyer in Maryland was retained to prosecute a personal injury case by the victim of a rear-end collision. Three years after being retained, he filed the case two days before the statute of limitations ran: "what, if any, effort [the attorney] made on behalf of [the client] in the interval between his having been retained, and the filing of the complaint, is not clear from the record." The lawyer neglected the case and lied to the client, failing to advise her that he had been indefinitely suspended and that her case had been dismissed with prejudice. She learned of the suspension when she filed an ethics complaint and learned of the dismissal by reviewing the court file.

She sued the lawyer and obtained (an uncollected) judgment. She sought to reinstate the underlying suit. The Maryland Court of Special Appeals held that counsel's misconduct was not extrinsic fraud, which is required to vacate the dismissal. Further, "nearly three years had passed since her original claim had been dismissed, and nearly 14 months had passed since she learned of the dismissal....appellant must act expeditiously to vacate a judgment." The client had a duty to keep herself informed about the progress of her case. (Mike Frisch)

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The client's first lawyer was a fraud. Her second lawyer was, apparently, incompetent in not moving to set aside the default judgment promptly. In part the court's decision blames the client. No mention of her second lawyer, the one who brought the case against the first lawyer.

The first lawyer's repeated failures to do what he was supposed to do go well beyond negligence into wilful and wanton misconduct which the lawyer hid from his client by failing to disclose what he should have disclosed and by telling bald faced lies. It's hard to see how that doesn't add up to fraud of some sort, even if it isn't "extrinsic fraud," which is the type required to re open an enrolled judgment in Maryland.

The opinion lets the first lawyer off too easily, doesn't mention the second lawyer and blames the client. Harsh way to express the court's conclusion.

The case began with the client being badly hurt when her car was rear-ended. The case has ended much the same way. By my count, after the first rear-ender, the client was figuratively rear-ended three more times: by her first lawyer, by her second lawyer and by the way in which the court expressed its reasoning in denying the motion to re-open.

Posted by: W.R. Chambers | Nov 7, 2007 12:13:47 PM

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