Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, February 10, 2009

Case law Development: Contractual Liabliity for Failing to Represent in a Professionally Responsive Manner

In a case that reminds family law attorneys to carefully review what they promise in retainer agreements, the Maryland Court of Appeals held that an attorney's representations regarding the quality of their legal services may be enforceable under contract principles.  The case involved an attorney sued his client, whom he had represented in a custody action, for more than $13,000 in unpaid legal fees. The client counterclaimed for the $24,525 in fees he had already paid, arguing that the attorney had breached his agreement to provide quality representation. The retainer agreement contained the following statement:

Thank you for expressing the desire for our firm and the attorneys herein, to represent you with reference to your marital difficulties. You may expect our firm to be both sensitive and professionally responsive to your situation.

The agreement went on to disclaim any warranties regarding outcomes in the case and to require the client to notify the attorney if he was dissatisfied with any aspect of the representation.  On appeal from a jury verdict in favor of the client, the attorney argued that the court erred in not enforcing the arbitration clause. The court of appeals reviewed the split in authority nationally on the question of whether agreements requiring arbitration of incompetence claims are enforceable. However, the court concluded it need not reach that legal issue since the attorney's participation in the litigation had the effect of waiving the arbritration clause. 

The attorney further argued that the client could not maintain a cause of action for breach of contract and that, even if that was permissible, the contract did not promise competent representation.  The court of appeals disagreed, finding the contract a promise of competent representation, so that the trial court did not err in introducing expert testimony and giving jury instructions regarding competence.  The court of appeals also affirmed the verdict for the entire amount of fees the client had paid the attorney.

Abramson v. Wildman (Md. Ct. Spec. App. February 4, 2009).
Read the opinion online  (last visited February 10, 2009 bgf)

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