Client authority, it's what makes lawyers go.

Client authority sustains lawyers. With client authority, a lawyer becomes an advocate, a deal maker, and the legal proxy for the client.  Without client authority, a lawyer remains a potted plant, unable to make an agreement or advocate a substantive position that is binding on the client or the client's case.

What happens when a lawyer acts beyond the express authority given by a client? This can happen where a lawyer knowingly ignores client instructions. But more often, it can happen where a lawyer is unclear on a client's instructions, or a client misapprehends a lawyer's advice and later withdraws authority.

Maryland's Court of Special Appeals gave practical advice to lawyers and clients on this subject in 4900 Park Heights Avenue LLC v. Cromwell Retail, LLC. The court was asked whether a settlement reached in the trial court could be enforced against a party claiming a lack of express authority between client and lawyer.

The case involved a commercial landlord and its tenant, and a dispute over the tenant's right to build a tall sign outside the leased building. The landlord had warned the tenant that recorded declarations restricted the tenant's rights to erect the sign, and that the tenant risked a lawsuit by the landlord for violation of the restrictions.  The tenant filed a lawsuit seeking a preemptive decision by the court that the intended sign was, indeed, permitted by the recorded declarations.

The case was hotly contested for over a year. One day before the scheduled trial the parties notified the court of a settlement. This meant the trial would not occur. The lawyers then arrived in court to announce the settlement "on the record." That means one or more lawyers for the parties describe the material terms of a settlement agreement so that the court's recording system preserves the agreement. In this case, the settlement was described by the landlord's lawyer, with the tenant's lawyer announcing his client's agreement to the settlement. Because the settlement included modifications to the declarations recorded in the land records, the parties advised the court that a more formal written document was to be drafted and signed by all parties. The court then issued a standard settlement order and sent the parties back to their offices to work out the agreement.

The negotiations over precise language of the settlement took several months, and the parties never did reach full agreement. This caused the landlord's attorney to bring the case back to court, seeking an order to enforce the settlement as it had been described and recorded in the record many months before.

In court, again, the tenant's lawyer advised that his client had not fully understood the broad reach of one particular concession in the settlement that had been put on the record. Through months of negotiation the lawyer had tried to further revise the term more to his client's liking- unsuccessfully.

The sticking point for the court was that the tenant's lawyer knew of his client's misapprehension on the same day as the settlement was put on the record. Instead of immediately notifying the court and all parties, counsel worked to massage the term into something less oppressive to his client.

The trial court made an order enforcing the agreement as it had been specifically stated on the record. The case wound up before the appellate court,which mostly affirmed the decision. On the issue of whether a confused client can authorize attorney action to make a binding settlement, the appellate court said "yes."  Where the lawyer unequivocally represented that he had client authority, the client did not show up in court to state differently, and where the misapprehension was not brought out for several months, all others were entitled to rely on the apparent authority of the tenant's counsel. The misunderstood settlement terms was thus enforced against the tenant.

In our own practice, we work hard to assure that clients understand the costs and consequences of substantive decisions. The lesson of this case is that where a misunderstanding arises, it is important to bring it to the attention of the court and all parties, thus permitting all to revisit the misunderstood item and to avoid the prejudicial passage of time. 

When playgrounds attack!

In 2010, Mr. Griffith and his eight year old son, Christian, wanted nothing more than a bit of "family time." The Mount Tabor Park vintage wooden slide seemed just the thing. A forty foot ramp of highly polished maple marks this as a real throwback amusement. It's like an elevated bowling alley!

Folks enjoy this slide on burlap, towels, or even wax paper.  Hardy souls just travel down by the seat of their pants.

Looks fun, doesn't it? Little Christian Griffith was impaled by an 8-121 inch wooden splinter...in his belly.  Not exactly the fun filled afternoon his father envisioned.

A lawsuit was filed in the Circuit Court for Frederick County against the church that owns the slide, alleging a history of injuries due to splintered wood.  Young Christian sought $500,000 in damages.
On July 20, 2012, the parties settled the case for $60,000. While the church denied liability, I am sure that the potential proof of prior incidents created enough of a risk that the church's insurance company decided to pony up some money.

Remember, even churches carry liability insurance.  And even churches are responsible to avoid creating hidden dangers for you and your children.

When you or a member of the family is seriously injured on property owned by others, there is a series of questions that must be answered before you can sue.  For instance, were you legally on the property? And if not, was it reasonable for the owner to know that you would be on his property because some condition attracted you or your child?  Was the condition hidden, or latent? Or, was it so apparent that you should have known better? In the end, every owner must take reasonable steps to prevent harm to folks legally on their property. Where a public amusement is maintained, the duty is even a bit higher.

So, after the injuries are tended, and you or your loved one is on the mend, talk to a lawyer. We have handled many cases of serious personal injury over the last 25 years.

Visit the Young & Valkenet website.

Check, Please! A good bartender won't libel you.

The February 13, 2012 Orange County Weekly blog reported the story of a federal court settlement favoring a restaurant patron discriminated against because of his race. I came across the story after it was picked up by the New York Daily News, and MSNBC.

The Orange County site, and the New York Daily News have the most complete fact recitation. In short, this poor guy did nothing but show up, order food, and pay his bill on frequent visits to the same establishment. Employees took to annotating his bar tab and food bills with racially charged epithets, names and descriptions. One of the sites even includes the copy of one offensive receipt.

Take a moment and breeze through the complaint in this case, captioned as Mark McHenry v CDM Restaurant, Inc., d/b/a Landmark Steakhouse, in the United States District Court, Central District of California, #CV11-02636 JHN.

The case was settled on February 2, 2012, one month before trial, after the Plaintiff's lawyers uncovered over a dozen other instances of such discriminatory behavior. This was after attempts by the Defendants to bar discovery into approximately 167,000 other receipts for evidence of widespread discriminatory behavior. Magistrate Judge Victor B. Kenton permitted the discovery.

This case resonates with me because of a case we recently resolved in favor of a similarly situated person.

Our client was the butt of e-mailed jokes circulated behind his back in the workplace. The e-mails consisted of pornographic images with the client's name, and the name of his wife, superimposed on the images. One of the images made reference to his wife's disability.

Like Mr. McHenry, our Maryland plaintiff was the object of "libel per se." This is a form of defamation, where something awful is said about you which changes how others percieve you, in a negative way. Where the conduct is so horrible that reasonable minds cannot differ on it's defamatory intent and effect, the plaintiff can recover even where there is not evidence that the horrible conduct caused medical damage (such as a need for counseling, or inabililty to perform at work).

And like Mr. McHenry, our case settled when we pushed the employer for discovery into all e-mail files circulated throughout the company which could have contained similar libelous material.

The immediate benefit of these cases is obvious: the injured persons get money as compensation for their shoddy treatment.  The longer term benefit is that the defendants will change their behavior. In my case, the board meeting where the lawsuit and offending employees were discussed was described to me as "the first five minutes of Saving Private Ryan."  I believe it. And they deserved it!

So, be vigilant, be fair, and show some respect to your fellow man. If not, me or some other member of the bar may just sit across the table someday, at your deposition!

Visit the Young & Valkenet website.

Wall papering over the hole in the wall

The Wall Street Journal reports that the largest title insurers have made an agreement with Bank of America and other large lenders that will allow the lenders to obtain title insurance even when there is a Maryland foreclosure in the chain of title. Fear of "bad affidavits" runs deep within the industry, now.

But those of us who litigate in this area know that other ripples are crossing the pond. In lawsuits over bad settlements (whether brought by buyer, seller, or lender) the settlement officer's standard of care is always made an issue. Because of the many hats worn by a settlement officer (title agent, seller's escrow officer, buyer's escrow officer, etc.) the claim is always made that the settlement company breached its standard of care. Perhaps the settlement company is alleged to have closed over bad documents, affidavits, or it improperly disbursed, missed a lien or encumbrance, ignored closing instructions, or violated title underwriting guidelines (by the way, who would want to be in that business?).

Expect claims of "you should have known" wherever a Maryland foreclosure appears in the title chain. The agreement to insure over this stuff may make title "insurable," but it certainly doesn't mean it will always be deemed "marketable." And that claim will be made against the title agent/settlement company, in addition to the seller. And don't forget the underwriter, ready to pounce for breach of underwriting guidelines, seeking indemnity under that agency agreement!

The standard of care for a reasonable settlement company (and its non-delegable duty to search title and disclose) has been raised because of the recent "bad affidavit" issues created by our friends in the foreclosure bar. With the actual knowledge imparted by the sheer volume of reports in the popular media about the issues, the lender's remedial actions, and the Court's recent emergency rule changes, how can a settlement officer/abstractor ignore reference to a foreclosure action in the title chain? He must review that file! That is what the reasonable settlement agent in Maryland now must do...period.

Last minute rush to register ground rents.

I love this article's reference to someone dropping off a disk containing hundreds of registration forms. These folks had three years to register. I bet many delayed to the last minute intentionally to punish the State for requiring registration.

But if you are dealing with a ground rent issue, don't count on the registry to be accurate or up-to-date for many months. The better practice is to continue to collect three years of ground rent and hold in escrow.