Ashcraft & Gerel v. Shaw

• Decision Date: 03 May 1999
• Docket Number: No. 585,585
• Citation: 728 A.2d 798,126 Md. App. 325
• Parties: ASHCRAFT & GEREL v. Larry SHAW, a Minor etc.
• Court: Court of Special Appeals of Maryland

728 A.2d 798

126 Md. App. 325

ASHCRAFT & GEREL v. Larry SHAW, a Minor etc.

No. 585, Sept. Term, 1998.

Court of Special Appeals of Maryland.

May 3, 1999.

Barry E. Cohen (Crowell & Moring LLP, on the brief), Washington, DC, for appellant.

Mitchell Y. Mirviss (Kathleen G. Cox, Venable, Baetjer and Howard, LLP, Andrew D Freeman and Brown, Goldstein & Levy, LLP, on the brief), Baltimore, for appellees.

Argued before EYLER, SONNER, and ADKINS, JJ.

ADKINS, Judge.

This case is an appeal from an order (Order) issued by the Circuit Court for Prince George's County requiring the production of certain documents in the possession of appellant, Ashcraft & Gerel (A & G), a law firm which represented appellee, Larry Shaw (Larry), and his mother, Elouise Witherspoon (Witherspoon), in medical malpractice litigation. The appeal involves three consolidated cases. The first case was a claim for medical malpractice against emergency room personnel at Prince George's County Hospital Center in which Witherspoon sued on her own behalf and on behalf of Larry (Maryland Malpractice Case).¹ Both Witherspoon and Larry were represented by A & G. In the second case, the Prince George's County Department of Social Services (DSS) petitioned to have Larry, a severely disabled minor child, declared a Child in Need of Assistance (CINA), pursuant to Md.Code (1974, 1998 Repl.Vol.), § 3-812 of the Courts & Judicial Proceedings Article (hereinafter, CJ) because his mother was unable to care for him (CINA Case). After the court found Larry to be a CINA, Larry's court-appointed attorney, Kathaleen Brault, Esq. (Brault), petitioned for appointment of a guardian of Larry's property, alleging that Witherspoon failed to act in his best interests in: 1) negotiating the settlement of the Maryland Malpractice Case and a related case; 2) allocating the settlement between the separate claims of Larry and his mother; and 3) handling the settlement funds. Brault also alleged that A & G had a conflict of interest relating to these matters and acted without attempting to resolve the conflict. The third case was an action brought by Witherspoon in the circuit court seeking the appointment of her mother, Ms. Padmore, and a bank as guardians of Larry's property (Guardianship Case).² Although A & G was not originally a party to any of the three suits, it moved to intervene in the CINA Case "for the limited purpose of explaining to the Court how the settlement in the [Maryland Malpractice Case] was achieved and how the proceeds of the settlement were disbursed."

ISSUES

The issues raised in this appeal are whether: 1) the Order requiring that A & G disclose documents in its possession was a final order subject to immediate appeal; 2) the circuit court had sufficient jurisdiction over A & G to order disclosure by A & G of documents in its possession, including written communications between A & G and Witherspoon pertaining to the Maryland Malpractice Case and the CINA Case; and 3) A & G can rightfully claim an attorney-client privilege or work product privilege to keep communications between A & G and Witherspoon confidential from Larry.

FACTS AND PROCEDURAL BACKGROUND

Larry was born in Liberia, Africa, in 1987 and lived there for the first four years of his life. Witherspoon, a Liberian citizen and permanent resident of the United States, resided in Maryland. During a 1991 airplane flight to New York with his mother, Larry became ill. Upon landing in New York, he was diagnosed by a JFK Airport physician with bronchitis. Two days later, when Witherspoon took Larry to the Prince George's County Hospital Center, a physician offered the same diagnosis. The next day, when Larry fell into a coma and suffered seizures, physicians at the Children's Hospital Medical Center in Washington, D.C. diagnosed him with cerebral malaria. By that time, Larry suffered cerebral damage causing severe retardation, seizure disorder, and other injuries, all of which required special care and medication.

After his release from the hospital, Witherspoon had much difficulty managing Larry's care even when provided with supportive services. She failed to dispense medication and comply with other therapeutic recommendations. On one occasion, she left Larry unattended for over an hour, which resulted in a protective services referral to DSS. In October 1992, DSS petitioned the circuit court to declare Larry a CINA, alleging, inter alia, that Witherspoon was unable or unwilling to provide proper care to Larry because she had an uncontrolled seizure disorder and exhibited signs of an emotional disturbance. The petition also alleged that she would not feed or medicate herself or Larry without prompting and assistance from others. After the CINA petition was filed, Witherspoon was hospitalized, and in October 1992, Larry was temporarily placed in the Holly Center, a Department of Health and Mental Hygiene (DHMH) residential facility in Salisbury, Maryland. On March 22, 1993, a Juvenile Court Master found Larry to be a CINA and committed him to the custody of DHMH under the protective supervision of DSS. A & G represented Witherspoon in the CINA Case.

In May 1992, Witherspoon retained A & G to represent Larry and her with respect to their potential claims against the medical providers in New York and Maryland. She agreed to pay A & G a forty percent contingency fee. Late in 1993, A & G, through New York counsel, brought the New York Malpractice Case. Witherspoon asserted claims on behalf of herself and as Larry's "natural guardian." Apparently, the complaint did not state that Larry had been adjudicated a CINA or placed in temporary State custody. In July 1994, A & G filed the Maryland Malpractice Case in the Maryland Health Claims Arbitration Office and named Witherspoon as Larry's next friend. There was no disclosure in these proceedings that Larry was committed to State custody or institutionalized at a DHMH facility. At the time of filing of the Medical Malpractice Cases, no guardian of Larry's property had been appointed.

By the fall of 1995, new issues arose in the CINA Case. Brault, as Larry's CINA counsel, filed a motion alleging that Witherspoon seldom visited Larry at the Holly Center and failed to correctly medicate and feed Larry during his first home visit. Counsel requested in the motion that Witherspoon be stripped of guardianship rights to consent to medical and education decisions. The juvenile court, after a hearing, ordered the requested limitation on Witherspoon's guardianship rights.³

At the time of Brault's motion, Witherspoon was still represented by A & G lawyers, David M. LaCivita (LaCivita) and Martin Trpis (Trpis). Shortly thereafter, when Brault complained that A & G had a conflict of interest in representing Witherspoon in the CINA Case and Larry and Witherspoon jointly in the Malpractice Cases, A & G withdrew from the CINA Case. Jon W. Sargent, Esq. (Sargent) entered his appearance for Witherspoon in the CINA Case.

In May 1996, A & G, on behalf of Larry and Witherspoon, entered a settlement agreement in the Maryland Malpractice Case and filed suit in the circuit court to obtain court approval of the settlement. Neither the complaint nor the attached affidavit by LaCivita disclosed Larry's status as a CINA, his commitment to DHMH custody, or the limited guardianship. Witherspoon was described only as Larry's "mother and next friend." The settlement agreement provided that Witherspoon would be the trustee of Larry's funds. At the request of counsel, Judge Ahalt of the circuit court held an informal chambers conference attended by LaCivita, Trpis, Witherspoon, and counsel for defendants. Judge Ahalt approved the settlement and A & G's proposed allocations of: 1) a $190,000 lump sum to Larry; 2) an annuity to Larry consisting of monthly payments in the amount of $2,221; 3) $50,000 to Witherspoon; 4) $300,000 to the State of Maryland to satisfy a Medical Assistance lien; and 5) $860,000 to A & G for attorneys' fees according to its forty percent contingency agreement. Defense counsel questioned whether a "special needs trust" should be established to receive some of Larry's portion of the settlement, but Trpis opined that Larry did not need such protection and Judge Ahalt approved the allocation as proposed by Trpis.

A settlement in the New York Malpractice Case was presented to the New York court on the same day. The court tentatively approved the settlement after reducing the contingency fee pursuant to New York law. It, however, refused to give final approval without first discussing a "special needs trust"⁴ with the Maryland court and counsel.

After the settlement, Witherspoon requested through the CINA Case that she be reunified with Larry (i.e., that Larry be returned to her custody). In July 1996, the juvenile court affirmed a permanency plan of reunification, but granted Brault's request for a psychological assessment of Witherspoon before effectuating reunification and removing Larry from DSS custody. The assessment was completed in mid-October by a psychologist retained by Sargent. When Brault wrote in November requesting a copy of the assessment, Sargent did not respond to the request.

Meanwhile, Brault learned that the Maryland Malpractice Case settled and she wrote to A & G and Sargent requesting details of the settlement terms and safeguards for Larry. Sargent deferred to A & G, but A & G attorney, LaCivita, declined to answer as a result of the confidentiality provision of the settlement agreement. After several months and an additional request, LaCivita provided Brault with a copy of a release which set forth the aggregate settlement sums, but omitted the details of the allocation of proceeds between Larry and Witherspoon and the status of Larry's share.

Brault learned additional information about A & G's representation that she found disquieting when she spoke with Larry's foster mother and former teacher at the Holly Center, Eileen...