Family lawyer, business attorney, and litigator

Q. What questions do customers most commonly ask you? What's your answer?

A. Often attorneys request that their clients sign a promissory note with a confessed judgment provision to make it easier for the law firm to collect fees owed from clients. The promissory note states that the client will pay his or her outstanding balance over a period of time and, if the client default on the payments, the law firm can obtained a confessed judgment for the balance owed.

A client should never sign such a promissory note, because there is a preexisting contractual obligation for the client to pay the fees owed.

Rule 1.8(a) of the Maryland Lawyers’ Rules of Professional Conduct require that the attorney inform the client of the desirability of seeking independent counsel and to give the client a reasonable opportunity to seek independent counsel prior to executing a promissory note. Rule 1.8 also requires that the attorney provide the client with informed consent in the form of a writing signed by the client, even if the client chooses not to seek independent counsel.

When a client signs a promissory note while being represented by the attorney, this creates a financial relationship between the client and the attorney. Such a relationship is a prima facia violation of Rules 1.7(a) (prohibiting representation when an attorney has a personal conflict of interest with the client) and 1.8(a). See Atty. Griev. Comm’n v. Snyder, 368 Md. 242, 265 (2002); Atty. Griev. Comm’n v. Korotki, 318 Md. 646, 666 (1990) (“to sustain a transaction of advantage to himself with his client, the attorney has the burden of showing, not only that he used no undue influence, but that he gave his client all the information and advice which it would have been his duty to give if he himself had not been interested, and that the transaction was as beneficial to the client as it would have been had the client dealt with a stranger”). Indeed, “when attorney and client contract during their attorney-client relationship, ‘the law makes a presumption against the attorney and in favor the client’”. Id. (quoting Etzel v. Duncan, 112 Md. 346, 350-51 (1910)). “This rule is founded upon public policy, because the confidential and fiduciary relationship enables an attorney to exercise a very strong influence over his client and often affords him opportunities to obtain undue advantage by availing himself of the client’s necessities, credulity and liberality”. Hughes v. McDaniel, 202 Md. 626, 633 (1953).

Q. What do you wish customers knew about you or your profession?

A.
THE 15 QUESTIONS THAT EVERY CLIENT NEEDS
TO ASK TO RETAIN THE RIGHT ATTORNEY
(published with the permission of KEP)

Several years ago, I had the misfortune of being involved in a protracted legal dispute. The entire experience was made infinitely worse by the first two attorneys that I retained. The first attorney, a highly regarded and extremely expensive Rockville attorney, was too busy to perform the necessary work on my case. I then interviewed 3 replacement attorneys. I made the rookie mistake of retaining a Bethesda attorney, who excelled at marketing herself and self-promotion, but lacked the sufficient legal skills and expertise to properly represent me.

After an exhaustive search, I then retained Stewart A. Sutton. What a difference the right attorney makes. He reviewed and personally organized my legal file and documents; he conferred with me to make sure that he understood the facts of my case; he researched and explained the applicable law to me; and he developed a new legal theory to resolve my case. As a result of Stewart A. Sutton’s efforts, I was able to settle my complex legal dispute quicker, more favorably, and less expensively than I had ever expected.

The lesson that I learned is that the right attorney will be able to resolve your legal problem in a favorable and expeditious manner. The wrong attorney will prolong your legal problems or make them worse. This makes the selection of your attorney a critical step in the process of solving your legal issues.

So that others do not repeat my mistakes, I wanted to determine how a person should go about retaining an attorney. In conjunction with a college course I was taking on surveys and research, I designed and undertook a study to answer my question.

My methodology was simple. I obtained the names and addresses of a wide cross-selection of former clients from recently closed civil court files from Montgomery County Circuit Court. I then interviewed the clients regarding whether or not they were satisfied with their former attorneys. I obtained basic characteristics of the attorneys from their former clients, the attorneys’ website, and other public databases. I then compared the characteristics of the attorneys from satisfied clients with the characteristics of the attorneys from dissatisfied clients.

The results were astonishing. I found that the attorneys for the satisfied clients shared many common characteristics. I have distilled my findings into 6 areas of inquiry and 15 essentials questions that a client needs to ask to retain the right attorney.

I.
SURVEY QUESTIONS

Step 1: GRADUATE OF A TOP RATED LAW SCHOOL

The first step is to select an attorney who attended a top rated law school. There are 200 law schools in the United States. Select an attorney who attended one the top 20 law schools as ranked by U.S. News and World Report.

Top rated law schools have a highly selective admission process; and graduation from one of these schools assures that the attorney has received a first rate legal education. While the University of Maryland produces many fine lawyers (Ranked No. 48), you are more likely to be satisfied with graduate from these local law schools: University of Pennsylvania (No. 7); University of Virginia (No. 10); Duke (No. 11); Georgetown University (No. 14); and George Washington (No. 20).

The other schools in the top ten are: Yale; Harvard; Stanford, Columbia, University of Chicago; New York University; Berkeley; and University of Michigan. The remaining schools in the top 20 are: Northwestern; Cornell; UCLA; University of Texas; Vanderbilt; University of Southern California; and Washington University in St. Louis.

Questions for clients to ask:
1. Which law school did you attend? (top 20 law school)
2. When did you graduate? (12 or more years ago)

Step 2: LARGE FIRM EXPERIENCE

The best students from top rated law schools are recruited by prestigious law firms located in major cities. These large firms are structured to train young lawyers to gain the necessary skills to practice law.

Questions for clients to ask:
3. Where did you work after you graduated law school? (a prestigious
or well known law firm)
4. How many attorneys worked at the law firm? (50 or more)
5. Where was the law firm located? (a city with a population over
500,000)
6. How long were you employed at this law firm? (5 or more years
years)

Step 3: BEGAN OWN LAW FIRM

After working at least 5 years at a large law firm, a lawyer has acquired sufficient skills to represent clients without supervision. A small fraction of such lawyers will eschew the high pay and prestige of working at a downtown law firm and start their own legal practice in suburban areas.
An attorney who starts his or her own firm is both confident and ambitious. You are looking for an attorney is a founding member of the firm and has been self-employed for at least 3-years.

Questions for clients to ask:
7. Are you a founding member of this firm? (yes)
8. When did you start your firm (3 or more years ago)

Step 4: SMALL FIRM

Small law firms (1 to 3 lawyers) have a distinct advantage over large firms. Small law firms have less overhead, less staff to supervise, and are less likely to become overextended with too many clients. A high attorney-to-staff ratio ensures that the attorneys are performing the work, not paralegals or secretaries.

Questions for clients to ask:
9. How many attorneys work at your firm? (1 to 3)
10. How many staff do you directly supervise? (0 or 1)

Step 5: NON-MATERIALISTIC

Many lawyers deliberately attempt to create the impression that they are successful by displaying their extravagant lifestyle. They drive high-end luxury vehicles, wear designer clothes and expensive jewelry, and live in high priced homes. The problem arises when lawyers live beyond their means. Such lawyers have a dysfunctional incentive to take on more cases than he or she can possibly handle. The hallmark of an overextended lawyer is providing low quality legal service to a high number of clients and charging excessive fees.

A non-materialistic lawyer is not concerned with creating the impression that he or she is successful by displaying ostentatious badges of wealth. The hallmark of a non-materialistic lawyer is providing high quality legal services to a small number of clients. Such lawyers can afford to turn away business, because they are not burdened with an extravagant lifestyle overhead.

Questions for a client to ask:
11. What type of vehicle does the lawyer drive? (under $30,000)
12. What type of watch does he or she wear? (under $250)

Questions concerning the attorney’s personal property can easily be worked into your initial interview with your prospective lawyer. You might say that you admire the attorney’s watch and inquire as to the manufacturer. You may inform the attorney that you are thinking about buying a new car, solicit his or her advice, and then ask him or her what type of vehicle he or she drives.

STEP 6: ACKNOWLEDGED LEGAL EXPERTISE

A non-materialistic attorney wants to impress clients, colleagues, and judges with his or her legal knowledge and skills. Such lawyers write legal books or articles for law journals, teach other lawyers at seminars, and serve as expert witnesses in court cases.

Questions for a client to ask:
13. Have you written a book or an article for law journal? (yes)
14. Have you taught other lawyers at a seminar or conference? (yes)
15. Have you testified in court as a legal expert? (yes)

II.
INTERPRETING THE SURVEY RESULTS

The clients who were most satisfied with their attorneys had affirmative responses to 12 or more of the questions. The clients who experienced the least amount of satisfaction had affirmative responses to 6 or fewer questions. Clients who had between 7 and 11 affirmative responses generally had a neutral experience with their attorney.

III.
LIMITATIONS

My findings are only preliminary in nature. A comprehensive study will have to be conducted to validate my results. My recommendations may only be applicable to clients who are seeking to retain an attorney in Montgomery County, Maryland.
Based upon anecdotal evidence of friends who have used my recommended methods for retaining an attorney, my advice increases the probability that the client will be satisfied with his or her attorney.

Q. Write your own question and answer it.

A. How is representing a child different than representing an adult?

Representing children who have been injured is considerably different than representing adults. Regardless of how seriously a child has been injured, no minor wants to sue a friend, a friend's parents, a neighbor, or a teacher. Even more challenging, children are not as articulate as adults, especially when the minor has suffered post traumatic stress from his or her injuries.

A. TYPES OF INJURIES TO CHILDREN

Children can suffer serious injuries in countless ways.

1. Motor vehicle accidents

Children are more likely than adults to suffer a severe injury in an automobile accident, because their small bodies cannot efficiently absorb and dissipate a physical impact. Stewart A. Sutton has successfully represented numerous minors who have been injured in vehicular accidents as both passengers and pedestrians.

2. School

Children are often injured at school, because they spend much of their waking hours at educational institutions

a. Classroom

In a class room, a teacher can violate a student's right to privacy by disclosing confidential medical information. Stewart A. Sutton successfully represented a minor whose HIV condition was disclosed by a Montgomery County public school teacher, because the teacher incorrectly believed that AIDS could be transmitted by sharing lip balm.

b. Recess

Each year, countless students are injured in playground fights. Teachers can be held liable for their failure to properly police the playground to stop fights between students. Besides physical injuries, it is common for a child who has been hurt in a school yard fight to suffer post traumatic stress symptoms.

c. Physical education classes

Many children are excused from participating in physical education due to medical conditions, such as asthma. Unfortunately, it is all too common that these children suffer exertion related injuries when their physical education teachers coerce them to participate in strenuous physical exercise.

d. Playground equipment

The school has a duty to properly maintain playground equipment and to supervise the children's proper use of the equipment under the doctrine of loco parentis.

3. Sleepover parties

When parents hosts a sleepover party, the parent expressly assume the responsibility of caring for their under aged overnight guests. Stewart A. Sutton has successfully represented a child who broke her ankle at sleepover parties due to the failure of the hosts to properly supervise the use of a trampoline. He also has successfully represented the parents of 2 children who died in a house fire in Gaithersburg, Maryland during an overnight sleepover when candles were used during a power outage.

4. Pools and hot tubs

Drowning is the second leading cause of unintentional injury-related death among kids ages 1 to 14. An adult host's duty to supervise minor guests' use of a pool or spa is inversely proportional to the child's age.

5. Dog bites

Thousands of children are wounded and scarred each year by dog bites. They are usually bitten by a neighbor or friend's dog. Stewart A. Sutton successfully represented a girl who was bitten on the face at a friend's house by the family dog.

6. Daycare Centers

Children are frequently injured at daycare centers due to understaffing and/or misuse of playground equipment. Stewart A. Sutton successfully represented a 5-year girl who finger was partially severed at a daycare center. The child was riding inside a wooden carriage that was being pushed by another child. The child's finger was crushed between the side of the carriage and an outdoor post. The daycare center was liable for the child's injuries, because the wooden carriage was never designed for outdoor use.

7. Babysitters

Stewart A. Sutton represented a mother whose son suffered disfiguring third degree burns when his babysitter held the child's hand in a pot of boiling water. The babysitter pled guilty to assault, battery, and cruelty to a minor; and she is serving a long prison sentence.

8. Psychiatric Hospitals

When a child is hospitalized to treat mental illness or substance abuse, the hospital's foremost duty is to protect the minor from harming himself or herself as well as protecting the child from other patients. Stewart A. Sutton has successfully represent a minor who was harmed as a result of the hospital's failure to properly monitor the minor patient.

9. False arrest and false imprisonment

Security guards often stop and detain children, despite the lack of probable cause to believe that the child committed a felony or breached the peace. Stewart A. Sutton has sued security guards firms for falsely arresting and imprisoning children.

B. DAMAGES

When a child suffers an injury, the child and the parent can recover 3 types of compensatory damages.

1. Medical and hospital bills

The parents are entitled to recover the child's medical and hospital bills, because the parents are responsible for providing medical care for their children. Even if the child has insurance, the parents are still entitled to be reimbursed for their child's healthcare expenditures.

2. Pain and suffering, including mental and
emotional distress

Anytime a child is physically injured, the child is entitled to compensation for his or her pain and suffering.

The minor is also entitled to be compensated for his or her mental and emotional distress in situations where there has not been a physical impact, such as when a teacher discloses the child's confidential medical condition.

3. Lost Wages

If the child's injuries prevents him or her from working at a regular job, the child can recover his or her loss income. If the child suffers a permanent injury, the child may be entitled to his projected future lost wages.

C. WRONGFUL DEATH OF A CHILD

For a wrongful death of a child, parents can collect damages for their own emotional distress as well as for their child's pre-death pain and suffering. As of October 1, 2009, the total amount of emotional distress (also known as non-economic damages) is capped at $1,087,500 in Maryland; and this amount increases by $22,500 on October 1st of each succeeding year.

For unmarried child between the ages of 18 and 21, the parents can recover their emotional distress damages as long as the parents provided more than half (50%) of child's support within 12 months before the child died.

As of October 1, 2009, the total damages the child's estate can recover for pre-death pain and suffering is capped at $725,000 in Maryland; and this amount increases by $15,000 on October 1st of each succeeding year.

The parents are also entitled to repayment of their child's medical and up to $5,000 in funeral expenses.

D. STATUTE OF LIMITATIONS

Adults have 3-years to file suit to recover for their personal injuries. This is known as a statute of limitations. In Maryland, the statute of limitations for minors extends to the day before their twenty-first birthday. However, it is a better practice for a parent to file a lawsuit on behalf of their child as soon as practical. Otherwise, memories of the accident will fade and documentation of the child's medical treatment and bills may be difficult to find.

When one parent has sole custody of the minor, the custodial parent has the exclusive right to file suit on behalf of the minor for a period of 1-year after the accident. If the custodial parent does not file suit, the non-custodial parent or any other adult can file suit on the child's behalf in the capacity of the child's best friend.

E. COURT'S APPROVAL OF A SETTLEMENT

Over 90% of all personal injury lawsuits are resolved by the parties entering into a settlement. In Maryland, it is a common practice for the parties to ask the Court to approve the settlement as being in the child's best interest and then having the court enter a consent judgment for the amount of the settlement.

F. SETTLEMENT AND JUDGMENT PROCEEDS

When a minor receives more than $5,000 as a result of a settlement or judgment, the parents are required to deposit the proceeds into a protected trust account. The child may withdraw the money from the protected trust account when he or she turns 18, or if the Court approves a withdrawal prior to the child reaching the age of 18 upon a showing of good cause.

Seventy percent (70%) of the child's protected trust fund must be invested in zero risk obligations, such as AAA- or AA-rated government bonds, Treasury Notes, or CDs. Only 30% may be invested in a mutual stock fund or money market fund, as long as the prospectus of the fund states that its objective is long-term growth or capital appreciation.