Lawyer Withdrawal: Norman v. Sinai
In this post of the Baltimore Medical Malpractice Lawyer Blog, we delve into the legal principles affecting lawyer withdrawal and appeals, using the Court of Special Appeals of Maryland reported decision in Norman v. Sinai Hospital of Baltimore Inc., 225 Md. App. 390 (2015) as a case study.
Factual Background
The plaintiff commenced the case representing herself. She obtained her first lawyer, and that representation ended. She retained her second lawyer and terminated him two months before trial, citing grievances concerning his representation. The plaintiff also failed to appear at the pretrial conference. (Op. at 1-2).
Six weeks before trial, the third lawyer entered his appearance and promptly filed a motion to postpone the trial date and get additional time for discovery. The Circuit Court for Baltimore City denied the motion. (Id. at 2).
At the pretrial conference, the lawyer renewed his motion for postponement and sought withdrawal. However, the court denied both motions. (Id. at 3).
Court of Special Appeals on Lawyer Withdrawal
On appeal, the lawyer argued that the denial of the motion for withdrawal was appealable under the collateral order doctrine. The Court of Special Appeals (CSA) responded by noting the four requirements for the collateral order doctrine to apply.
(1) it must conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment. (Id.).
The CSA found that only elements 1 and 3 were present. It was not an important issue because there was no evidence of harm from the ruling. The CSA also stated that the order was not effectively unreviewable on appeal because the client would still have the benefit of a remedy before entry of a final judgment. (Id. at 4).
The lawyer argued that his participation in the case was contingent on a postponement and the client obtaining lead counsel that the lawyer would assist. (Id. at 5). The CSA noted that the primary basis for attorney withdrawal was Professional Conduct Rule 1.16(b)(5), where the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and the lawyer has given reasonable warning that the lawyer will withdraw unless the client fulfills the obligation. (Id. at 6). This situation was not present here. (Id. at 7).
Common factors include that the attorney would suffer immense financial hardship or exposure to sanctions for ethical violations, or a significant conflict of interest existed between the attorney and the client. (Id. at 7).
Application of Factors
Those were not present here. The circumstances that the lawyer complained about were ones he was aware of when he entered his appearance. The issue here was not important because there was no potential for significant harm to the lawyer. (Id. at 8).
The order was also not effectively unreviewable on appeal. If the defendant won the trial, the appeal could raise the order. Therefore, there would be no harm to the lawyer. (Id. at 9).
As a result, the CSA dismissed the appeal. (Id. at 9-10).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Lawyer Withdrawal
The CSA noted that a new rule in effect after this case would allow the attorney to file a notice of limited appearance with the circuit court pursuant to an agreement with the client. Maryland Rule 2-131(b). That now allows a lawyer to enter a limited appearance for the purpose of seeking a trial postponement and additional discovery. If successful, the lawyer can then enter a whole appearance to pursue the litigation.
Without the benefit of this rule, the lawyer was taking a risk in entering his appearance. However, in concluding there was no financial hardship, the CSA did not appreciate the economic realities of contingency fee representation.
The CSA contrasted this situation with one where the client stopped paying the lawyer. However, the contingency lawyer can suffer financial hardship differently. The contingency fee lawyer postpones the fee and incurs substantial expenses in pursuing the case, being paid and reimbursed upon successful completion. When there is insufficient discovery and inadequate trial preparation, both of those factors can result in a loss that has a substantial negative financial impact on the lawyer. The lawyer who is getting paid along the way does not incur harm, but the contingency lawyer does.
In this light, the order is not effectively reviewable on appeal. The appeal is after the lawyer has spent legal time and has to swallow substantial case expenses.
However, the lawyer was fully aware of these risks when he chose to enter his appearance. This clear understanding of the potential consequences contributed to a lack of sympathy from the appellate court when the lawyer sought withdrawal, serving as a cautionary tale for legal professionals.
Red Flags
One of the most critical aspects of this case was the red flags that the lawyer chose to ignore. Despite the plaintiff’s history with two previous lawyers, the lawyer chose to proceed, a decision that should serve as a warning to other legal professionals. Wise lawyers will avoid such situations unless there is an extraordinary explanation unrelated to the merits or the relationship trouble between lawyer and client. This case did not have that.
The defense won the case on summary judgment after establishing that there was no record of the doctor having done what the plaintiff alleged. The plaintiff appealed and lost.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.