Abramson v. Wildman, 2009 WL 250615 (Md. App. 2009)

Brief Summary
Where attorney expressly agreed to represent a client in a “professionally responsive” manner, client was held allowed to pursue a breach of contract claim for malpractice.

Complete Summary
Plaintiff Joel Abramson, an attorney, filed a breach of contract action against a former client, defendant Ronald Wildman, for unpaid legal fees arising from Abramson’s representation of Wildman in a custody dispute. Wildman filed a breach of contract counterclaim, alleging that Abramson had violated a provision in the retainer agreement that called for Abramson to “be both sensitive and professionally responsive to [Wildman’s] situation.” Id. at *1.

At trial, the jury sided with Wildman and awarded him a return of the legal fees he had paid as damages. The trial court also held that Abramson had waived his right to arbitrate any claims brought by Wildman. Abramson appealed.

The retainer agreement called for Wildman’s claims to be arbitrated but allowed Abramson to go to court. The Maryland Court of Special Appeals upheld the trial court’s finding of waiver. The court based its holding primarily on the fact that Abramson had initiated the lawsuit and, upon receiving Wildman’s counterclaim, did not insist on arbitration but instead answered the counterclaim.

Regarding the breach of contract issue, Abramson argued that any breach of professional duty was only actionable in tort. The court rejected this argument and held that because the contractual provision at issue was express rather than implied, it was enforceable in a breach of contract action.

Abramson also argued that if the action was for breach of contract instead of tort, evidence of his alleged lack of competence should not have been admitted. The court disagreed, holding that Abramson’s breach of his duty of care was the key issue regardless of the claim asserted.

Finally, Abramson argued that the jury erred in awarding Wildman a return of legal fees. The court rejected this argument based on its view that such awards are common in malpractice actions and because they often represent the only tangible damage sustained by a client.

Significance of Opinion
This opinion makes clear that in Maryland, as in some other states, one can allege legal malpractice in a breach of contract claim if the engagement letter contains express representations regarding the work that the lawyer will do.

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