Wednesday, February 4, 2009
A Maryland lawyer retained to handle a custody suit filed suit against the client for unpaid fees. The client counterclaimed alleging that the lawyer had breached the retainer contract by failing to properly represent him and sought the return of fees that had been paid. Counsel for the lawyer then sought but did not get arbitration of the dispute, as contemplated by the retainer agreement. The jury gave the lawyer nothing; the client won the return of almost $25,000 in previously paid fees.
The lawyer appealed, claiming that the arbitration provision should have been applied and that the breach of contract counterclaim was a veiled claim of legal malpractice. The Maryland Court of Special Appeals rejected these contentions, finding that the arbitration provision had been waived when the lawyer filed suit. Further, the court found that a breach of contract claim and remedy could properly be brought for asserted violation of the "express contractual obligations" of the retainer agreement.
The court quotes Mallen & Smith, Legal Malpractice: "Few modern actions against attorneys are for breach of contract" but holds that "This is one of them." (Mike Frisch)