Legal Malpractice in Maryland: Errors That Can Cost You a Recovery

Legal malpractice representation · Alan J. Belsky · Maryland

Did your attorney miss a deadline or fail to name a defendant, leaving you unable to recover damages? The starting point is a review of both the attorney’s handling of the matter and the claim you originally hired the attorney to pursue.

A missed deadline does not answer every question

Legal malpractice requires more than identifying an attorney’s mistake. Maryland decisions require a duty arising from the representation, a breach, and loss caused by that breach. A procedural error and a disappointing result are not, by themselves, proof of a compensable claim.

The review asks what should have happened, what actually happened, and whether the difference deprived you of a monetary recovery. The court papers, correspondence, and chronology matter more than a general description that the case was “thrown out.”

Discovery and expert-witness deadlines matter, too

Important deadlines include those established in a court’s scheduling order for completing discovery and identifying expert witnesses. A lawsuit may have been filed on time, yet later failures to meet these deadlines can jeopardize the client’s ability to prove the case.

Failure to timely identify an expert, disclose the required opinions, or comply with discovery obligations may lead a court to exclude testimony or other evidence. When the excluded evidence is necessary to establish liability, causation, or damages, the client may be unable to present an otherwise viable claim.

The review examines the scheduling order, what the attorney was required to disclose, the discovery exchanged, any requests to extend deadlines, and the court’s ruling. It also asks whether timely compliance would have preserved evidence supporting a monetary recovery. A missed deadline or an exclusion order alone does not establish malpractice; the attorney’s breach and resulting loss still must be proved.

When a potentially responsible defendant was omitted

Identifying the proper parties can require examining an individual provider’s involvement, employment relationships, and the organization responsible for the conduct. The firm’s review considers the omitted party’s role, the available evidence, and the procedural history. An omission must be evaluated in the context of the underlying case; it does not establish liability automatically.

In medical negligence matters, identifying providers and reviewing the required preliminary claim process are particularly important. The records may involve several providers, specialties, and organizations. See our medical malpractice page for the firm’s approach to reviewing those matters.

Post-judgment motions and the deadline to appeal

Confusing the time allowed to seek revision of a judgment with the time to appeal can cause the loss of appellate review. Under Maryland Rule 8-202, a notice of appeal is generally due within 30 days of entry of the judgment or order. A timely Rule 2-534 motion filed within ten days affects that deadline. A Rule 2-535 motion filed within ten days has the same effect for this purpose; one filed after ten days but within thirty ordinarily does not extend the deadline to appeal the underlying judgment.

The distinction concerns the time to appeal, not an automatic stay of enforcement. The review examines the docket, entry dates, motion, and disposition rather than assuming that any pending reconsideration motion preserves appellate rights.

Illustration: Evans v. Robinson (unreported opinion); discussion of Rule 8-202(c) and its committee note (unreported opinion).

Failing to preserve an issue for appeal

Filing a timely appeal is only part of protecting a client’s appellate rights. Depending on the issue and procedural setting, counsel may need to make a timely objection or motion, state the appropriate grounds, obtain a ruling, and renew a motion at a later stage. Failure to take a required step can prevent appellate consideration of an otherwise substantial issue.

Review therefore includes the trial transcript, motions, objections, rulings, and post-trial filings. It asks which preservation steps were required, whether an omission limited appellate review, and whether that failure caused the loss of a monetary recovery. Not every unpreserved issue would have produced a successful appeal.

Inadequate investigation and preparation

A claim can be compromised before trial if the attorney fails to investigate the facts and develop the evidence needed to prove it. Potential failures include not obtaining essential records, identifying responsible parties, consulting appropriate experts, or developing evidence of liability, causation, and damages.

The review considers which investigative steps were reasonably required, what information was available, and how the omission affected the underlying claim. For example, missing records may prevent an expert from reaching a supported opinion, while incomplete investigation of a provider’s role or organizational relationships may leave a potentially responsible defendant unidentified.

Inadequate preparation can also undermine settlement advice. Advice based on an incomplete understanding of the evidence may lead a client to surrender a valuable claim or accept less than the claim reasonably warranted. But dissatisfaction with a settlement, or another attorney’s preference for a different strategy, does not by itself establish malpractice. The review must connect a failure to meet the applicable standard of care with an actual loss of monetary recovery.

As with trial decisions, the assessment considers the information and circumstances at the time, rather than assuming that every unfavorable outcome reflects negligent preparation.

Joint tortfeasor release errors

When more than one party may be responsible for an injury, settling with one defendant requires careful attention to how the release affects the remaining claims. A joint tortfeasor release addresses more than the amount paid by the settling defendant: its terms may determine which parties are released, the reduction applied to a later recovery, and contribution rights among defendants.

Under Maryland Courts and Judicial Proceedings §3-1404, releasing one joint tortfeasor does not discharge others unless the release provides otherwise. The remaining claim is reduced by the consideration paid or by a greater amount or proportion specified in the release. Section 3-1405 addresses the conditions under which a release protects the settling tortfeasor from contribution, including a reduction corresponding to that tortfeasor’s pro rata share.

Potential errors include unintentionally releasing additional defendants or claims, accepting an inappropriate reduction provision, and failing to explain how the release could affect the client’s total recovery. A pro rata reduction can have consequences different from a credit limited to the settlement payment. The actual language, the settling party’s status, and the circumstances of the case require review.

Example: an auto accident followed by medical negligence

A person injured in an auto accident may suffer additional harm from negligent medical treatment of the accident injuries. That sequence can involve separate claims against the driver and the medical providers, with potentially overlapping damages. Settling the auto claim therefore requires consideration of its effect on the medical malpractice claim.

A release intended to resolve only the auto claim may prejudice the later medical claim if its language also releases medical providers or encompasses claims the client intended to preserve. The settlement’s treatment of the original injuries and the additional harm can also affect the damages remaining recoverable. Whether the parties are joint tortfeasors for particular damages, and what credit or reduction applies, requires analysis of the facts, governing law, and actual release.

The review asks whether counsel investigated the subsequent medical event before recommending settlement, identified the related claims, and addressed the release’s effect on the client’s overall recovery. This example does not mean that every auto settlement bars a later medical malpractice claim. It illustrates why related claims must be considered together before a release is signed.

A malpractice evaluation examines the release, settlement negotiations, advice given to the client, and the effect on claims against nonsettling defendants. As with other alleged errors, the question is whether negligent handling caused an identifiable loss of monetary recovery.

Sources: Courts and Judicial Proceedings §3-1404 and §3-1405.

Trial decisions require a different kind of review

Alleged errors during trial can be more difficult to evaluate because attorneys exercise professional judgment in deciding which witnesses to call, what questions to ask, and how to present a case. Reasonable attorneys may make different strategic choices. An unsuccessful strategy or an unfavorable verdict does not, by itself, establish malpractice.

The review considers what the attorney knew or reasonably should have known at the time, the preparation supporting the decision, and the circumstances in which it was made. The question is whether the conduct fell below the applicable standard of care and caused the loss of a monetary recovery—not simply whether a different approach appears preferable in hindsight.

Errors in bankruptcy representation

Potential errors include filing under an inappropriate bankruptcy chapter, failing to claim available exemptions, or failing to seek avoidance of a lien when the law permits it.

Review also includes whether counsel adequately investigated the client’s actual or potential assets, including contingent or unliquidated claims, personal injury recoveries, and inheritances. Counsel must consider disclosure requirements, available exemptions, filing timing, and the potential consequences for the client’s property or recovery.

Errors may also arise in prosecuting or defending an adversary proceeding—for example, missing required responses or deadlines, failing to develop necessary evidence, or failing to preserve claims or defenses. Neglecting required filings or other obligations may also lead to an unintended dismissal of the bankruptcy case or an adversary proceeding.

An unfavorable result alone does not establish malpractice. Review must consider the options legally available, the attorney’s advice and decisions, and whether an error caused an identifiable monetary loss.

The “case within a case”

When an attorney’s negligence allegedly destroyed a damages claim, proving the malpractice often involves proving the underlying claim as well. This is commonly called the case within a case. The inquiry considers what the client would have recovered with competent representation, including the underlying evidence and defenses.

The result is a substantial commitment of time and expense. The firm must investigate the attorney’s conduct while reconstructing the claim against the original defendant. This is why our practice focuses on serious losses of monetary recovery.

The claims this practice pursues

Alan J. Belsky pursues claims involving attorney errors and omissions that deprived a client of monetary damages. These matters usually, but not always, arise from personal injury claims. The practice does not pursue matters involving only rights without a monetary damages recovery.

Ethical misconduct and malpractice can overlap, but disciplinary concerns have a separate process. Maryland’s Attorney Grievance Commission oversees attorney disciplinary matters. A grievance is not a substitute for pursuing a damages claim.

Subrogation and reimbursement in a malpractice recovery

An insurer, benefit plan, or government program may claim repayment from a recovery. Whether that right reaches a legal-malpractice settlement requires review of the governing law, benefit documents, and damages recovered. Neither automatic repayment nor automatic exemption should be assumed.

Our guide to subrogation and medical liens explains private health insurance, ERISA plans, workers’ compensation, Medicare, Medicaid, federal medical recovery, notice requirements, and the distinct questions raised by legal-malpractice recoveries.

The client’s role also requires review

Contributory negligence must also be considered when the client had an independent opportunity to take reasonable action to prevent the loss. Review includes what the client knew, what counsel explained or requested, whether the client could reasonably have acted, and whether an omission contributed to the prejudicial event.

Examples may include failing to disclose an asset or claim, withholding requested information, or disregarding a clearly explained deadline or instruction. The assessment must also account for the client’s reasonable reliance on the attorney’s advice and responsibility for handling the matter.

What helps with the initial review?

• The name of the attorney or firm and the type of underlying case.
• A short chronology of the original event and the representation.
• The complaint, scheduling order, discovery requests and responses, expert disclosures, and any dismissal or evidence-exclusion ruling.
• Letters or emails about the deadline, omitted defendant, or termination of representation.
• A brief explanation of the injury and monetary recovery you believe was lost.

Start with a few details. The office will explain how to provide documents securely. Do not submit Social Security numbers, account information, or detailed medical records through the initial inquiry form.

Request a Case Review

Have the matter reviewed promptly. The deadline governing a legal malpractice claim requires its own analysis; submitting an inquiry does not extend a filing deadline.

Maryland authorities

Thomas v. Bethea, 351 Md. 513 (1998) addresses attorney negligence and the case-within-a-case approach. Supik v. Bodie, Nagle, Dolina, Smith & Hobbs, P.A., 152 Md. App. 698 (2003) discusses actual injury and accrual in a legal malpractice action. See selected results and reported opinions involving Alan J. Belsky.