Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
Legal Ethics Hotline Volunteers
Practice Pointers: Obtaining Personal Jurisdiction
and Judicial Recusal
The recent decision by the Court of Special Appeals in Conwell Law v. Tung, 221 Md. App. 481, 109 A.3d 1227 (2015) contains important examples concerning compliance with the Maryland Rules and trial court orders. This review summarizes an extensive, convoluted set of facts, and is intended to highlight a couple of areas of the practice of law with which practitioners may not be familiar.
The lawsuit was an action by a law firm against a former employee and an associated law firm and its employee alleging multiple torts, including legal malpractice. Defendants Tung and Robinson were attorneys employed by the law firm, Conwell Law LLC. While so employed, Tung and Robinson represented Technical Furniture before the U.S. Patent and Trademark Office (“USPTO”). Significantly, pursuant to the Code of Federal Regulations (“CFR”) Tung was “lead counsel” and Robinson was designated “back-up counsel”. Although not explained in the opinion, at some point Tung and Robinson left the employ of the Conwell Law Firm and became employed by BIO Intellectual Property Services (“BIO”). Thereafter Conwell Law sued Tung, Robinson, and BIO.
Conwell Law filed two complaints against the Defendants, one a “Non-Confidential Complaint” and one a “Confidential Complaint.” Both contained the same causes of action—alleging fraud, constructive fraud, breach of fiduciary duty, unfair competition, non-disclosure/concealment, tortious interference with contract, tortious interference with business relations, replevin, and legal malpractice. See, 221 Md. App. at 486, n. 3. Tung was a defendant in all counts. Robinson and BIO were defendants only in the legal malpractice count, and were represented in the lawsuit by defense counsel separate and apart from defense counsel for Tung.
The Conwell law firm claimed that it had filed the Confidential Complaint under seal because it contained extensive attorney-client and other confidential information which was not contained in the Non-Confidential Complaint. The law firm made no effort to serve either complaint after receipt of summonses. Accordingly, the circuit court issued a Rule 2-507 notice of dismissal. The law firm then requested reissuance of summonses, and summonses were reissued. It also filed a response to the Rule 2-507 notice explaining that it had delayed filing the complaints and service of them to protect the interests of its client, Technical Furniture. The law firm also filed a notice/return of service of the Non-Confidential Complaint on each of the Defendants.
All Defendants filed motions to dismiss asserting that incomplete copies of the Non-Confidential Complaint had been served, and that they had not been served with a complete copy of the Confidential Complaint. The circuit court denied the motions to dismiss, but in separate orders, ordered the law firm to re-serve the Defendants with the complaint and all accompanying papers. In part the court order provided that if the law firm “fails to comply with this Order, this action will be dismissed.” 221 Md. App. at 489 (emphasis not added). The law firm did not serve the Defendants directly. Instead, it served summons and the Confidential Complaint on the attorneys for each Defendant.
The Defendants filed motions to dismiss for failure to comply with the aforesaid orders, and the circuit court considered the motions separately on different occasions. As to the motion to dismiss filed by Robinson and BIO, it noted that Conwell Law had failed to comply with the previous order and dismissed the “Complaint” without prejudice. 221 Md. App. at 489. Thereafter, the law firm filed a motion for reconsideration arguing that service on the attorneys for Robinson and BIO was sufficient. The circuit court thereafter rendered an order that: (a) determined that the court did not have in personam jurisdiction over any Defendant, (b) dismissed the “case” without prejudice, (c) authorized the law firm to request (within 7 days from the date that the order was docketed) one additional summons for each Defendant (referred to as a “Final Summons”), (d) ordered that the dismissal would be stricken as to any Defendant over whom the court acquires in personam jurisdiction by service of a Final Summons pursuant to Maryland Rule 2-121, and (e) authorizing any Defendant to request an order of dismissal with prejudice if the court did not acquire in personam jurisdiction by service of a Final Summons. Id., at 490-91.
The law firm then filed an affidavit of service relying upon its previous service of the Confidential Complaint on the attorneys for the Defendants.
Subsequently, the court held an open motions hearing, including the motions to dismiss filed by the Defendants for failure to comply with the court order requiring service of the Final Summons. At the hearing Conwell Law argued that it did not have to serve the Final Summons directly on each Defendant as required by Maryland Rule 2-121(a) because the attorneys for the Defendants had agreed to accept service of process. The attorneys for Robinson and BIO acknowledged that agreement, and their motion to dismiss was denied. The attorney for Tung, however, disputed any such agreement, and no evidence of such an agreement was offered. Consequently, the court granted dismissal as to Tung, with prejudice, for failure to serve Tung as required by its previous order.
Thereafter, Robinson and BIO filed a motion for dismissal for failure to state a claim or, alternatively, failure to join a necessary party, i.e., Tung. The Conwell Law Firm also filed a motion for reconsideration of the dismissal of the lawsuit as to Tung. The circuit court held a hearing on the motions, and denied the motion for reconsideration and reiterated its dismissal, with prejudice, of the claims against Tung. It also granted dismissal, with prejudice, of the legal malpractice claim against Robinson and BIO for failure to state a claim. Based on its dismissal of the claims against Tung, all dismissals were with prejudice. The law firm appealed to the Court of Special Appeals.
As to Tung, the Court of Special Appeals recognized that there were three (3) attempts to serve, but none were effective, and, therefore, it did not have in personam jurisdiction. The first attempt, the original service, was deficient because delivery of the Non-Confidential Complaint never included the complete version of the complaint filed with the circuit court as mandated by Maryland Rule 2-121(a) which requires delivery of “a copy of the summons, complaint, and all other papers filed with it.” 221 Md. App. at 500. It also explained that jurisdiction could be conferred on the court and objections to service waived by a party’s voluntary appearance. Tung had filed a motion to dismiss pursuant to Maryland Rule 2-322(a) which challenged jurisdiction. Conwell Law, however, contended that objection to service was waived by Tung because her first filing was an opposition to the firm’s Motion to Defer Dismissal as to the Rule 2-507 notice. The court noted that as a matter of fact Tung’s opposition to that motion was not filed until after she had filed her motion to dismiss. Id., at 502-03. The court further explained that the defenses listed in Maryland Rule 2-322(a) are waived only when a party files an answer before raising those defenses and that had not occurred. Id., at 503. The appellate court also explained that dismissal was proper because the law firm never properly served Tung under Maryland Rule 2-121(a). As to the subsequent two attempts at service on Tung by serving her attorneys, the appellate court agreed with the circuit court that there was no demonstration that those defense attorneys had agreed to accept service or had been authorized by Tung to accept service. Id., at 500-02. It also explained that while the circuit court did not specifically identify any prejudice to Tung, the Conwell law firm knew that Tung was a practicing attorney and knew her address, but never provided a valid justification for failing to serve her. It noted that the circuit court had observed that Tung had litigation expenses, and that the law firm filed suit shortly before the expiration of the statute of limitations. In this situation the court determined that there was no need for a more specific delineation of prejudice. Id., at 512.
As to Defendants Robinson and BIO, the Court of Special Appeals explained that to maintain a legal malpractice action an attorney-client relationship must exist between the parties. The factual allegations made by the law firm against Robinson and BIO did not show anything more than a co-counsel, as opposed to an attorney-client, relationship. Under the CFR regulations, Robinson essentially “second seated” Tung and had only limited authority in the USPTO proceedings. Robinson was no more than a co-counsel. Accordingly, the claim against Robinson and BIO failed to state a claim for legal malpractice. 221 Md. App. at 514-16.
One final note: During the course of the circuit court proceedings Tung’s attorney sent a letter to the administrative judge asking that the case be specially assigned to one judge. The case was so assigned, and that judge rendered the orders which finally resolved the lawsuit. On appeal Conwell Law argued that “special assignment of the case to a single judge gave the appearance of ‘impropriety, partiality, and prejudicial influence.’” 221 Md. App. at 516. The Court of Special Appeals rejected this argument. It explained that a motion for recusal must be filed as soon as the basis for it becomes known and relevant, and may not be withheld until there is an unfavorable ruling. And, if not made before the presiding judge of the trial court, the basis for the motion to recuse will be deemed to have been waived. Id., at 516-17.
William J. Chen, Committee Member
Allen J. Katz, Co-Chair
Daniel L. Shea, Co-Chair
Samuel M. Shapiro, Co-Chair
Allen J. Katz
Samuel M. Shapiro
Daniel L. Shea
September 17, 2015
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