Son v. Margolius, Mallios, Davis, Rider & Tomar, No. 313

• Court: Court of Special Appeals of Maryland
• Writing for the Court: HARRELL
• Citation: 689 A.2d 645,114 Md.App. 190
• Docket Number: No. 313
• Decision Date: 01 September 1996
• Parties: Danny SON, v. MARGOLIUS, MALLIOS, DAVIS, RIDER & TOMAR et al. ,

Page 190

114 Md.App. 190 689 A.2d 645 Danny SON,
v.
MARGOLIUS, MALLIOS, DAVIS, RIDER & TOMAR et al. No. 313, Sept. Term, 1996. Court of Special Appeals of Maryland. Feb. 26, 1997.

[689 A.2d 647]

Page 195

Appeal from the Circuit Court for Montgomery County; DeLawrence Beard, Judge.

Joseph M. Mott (J. Stephen McAuliffe, III and Miles & Stockbridge, P.C., on the brief) Rockville, for Appellant.

Barry J. Rosenthal (Bromberg, Rosenthal & Siegel, on the brief for appellees, Jennifer Park and Park Consultants) Rockville, Albert D. Brault (David G. Mulquin and Brault, Graham, Scott & Brault, on the brief) Rockville, for Appellees.

Argued before MOYLAN, WENNER and HARRELL, JJ.

[689 A.2d 648]

Page 196

HARRELL, Judge.

Danny Y. Son, also known as Yong C. Son, appeals from a judgment of the Circuit Court for Montgomery County that concurrently denied his motion for summary judgment and granted summary judgment to appellees. The beneficiaries of the alleged error were Margolius, Mallios, Davis, Rider & Tomar (referred to hereinafter as the "law firm" or the "firm"), Gary A. Stein, Esquire, a partner in the law firm and Mr. Son's attorney in a collateral action, and Jennifer Park, the Korean-American consultant who is at the center of this controversy. Mr. Son brought his action to void an alleged illegal contract, and asserting as well counts sounding in fraud, constructive fraud, negligence, and civil conspiracy. He sought to recover $242,500.00 in fees paid to Ms. Park and $1.139 million in legal fees retained by the law firm and Mr. Stein. We shall affirm the trial court's grant of summary judgment regarding the contract avoidance count and reverse as to the remaining counts.

FACTUAL BACKGROUND

The parties assert that this case is as much about the clash of Korean and American cultures ¹ as it is the evils of barratry and fee-splitting, and the regulation of such conduct. This controversy began when Mr. Son was involved in a serious motor vehicle accident on 5 August 1992. The resultant injuries left him a quadriplegic. Mr. Son and his wife ² are Korean immigrants with concededly limited knowledge of American customs and the English language. Ms. Park testified that approximately two days after the accident, Ms. Son contacted her to ask for "help" in finding a lawyer. Mr. Son

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contends that Ms. Park was well known in the Korean community in the Washington, D.C. metropolitan area as someone who located lawyers for Koreans in need of legal services. His position is supported by Ms. Park's own testimony that she had been helping members of that community find lawyers for over 15 years. Ms. Son essentially testified that the reason she contacted the consultant was that Ms. Park held herself out to the Korean community as a coordinator of legal services. Specifically, she testified that "the Korean people do not know where they find out (sic) attorney". Ms. Park testified that she often had multiple clients at any one time and performed lawyer referral services for other types of litigants, in addition to personal injury plaintiffs, in Washington, D.C., Maryland, and Virginia.

Ms. Son and Ms. Park became acquainted before Mr. Son sustained his injuries. Approximately 6 years before the accident, Ms. Park employed Ms. Son as a bookkeeper. It is through this relationship, Ms. Park asserts, that Ms. Son knew of her reputation as a consultant. In any event, Ms. Park agreed to provide the names of attorneys to Ms. Son. She provided Ms. Son with a list of three attorneys. Attorney Stein's name was first on that list. Mr. Stein and the law firm, although maintaining their principal office in Washington, D.C., had offices in Rockville, Maryland. Mr. Stein was admitted to practice law in Maryland. It is unclear from the record whether Ms. Park intimated to Ms. Son that Mr. Stein was the best choice on the list or how involved Ms. Park was in his selection. Mr. Stein, however, ultimately was selected and arrangements were made for Ms. Park and Ms. Son to meet with Mr. Stein.

Mr. Son remained comatose for several weeks after his accident. His wife, therefore, began to forge contractual relations with Ms. Park and Mr. Stein purportedly on her husband's behalf. On 12 August 1992, Ms. Son signed a written contract agreeing to pay 10% of the proceeds of any settlement or judgment, separate and apart from the attorney's fees, to Ms. Park. On that same date, Ms. Son executed a retainer agreement, signed by her and Mr. Stein, securing

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the services of the law firm and setting their fee [689 A.2d 649] at 30% of the amount recovered. The fee increased to 35% if the case went to trial.

Not long after Mr. Son regained consciousness, he was presented with a document entitled "General Power of Attorney" that purportedly authorized his wife, inter alia, to enter into contracts, manage business affairs, and commence and prosecute any suits or legal actions. Mr. Son signed the document in the presence of a Notary Public on 22 September 1992. His competency, at that time, to have done so is disputed. ³

On or about 11 November 1992, a new consulting agreement between Ms. Park and Ms. Son was signed. This agreement detailed the nature of their arrangement. Ms. Park agreed to provide extensive "consulting services" to the Sons. Particularly of interest to our analysis, Ms. Park and Ms. Son agreed that:

Ms. Park will act as a consultant to [the Sons] for so long as necessary to assist in all activities necessary for the ultimate prosecution of their claims other than legal services. Such services include, but are not limited to, translation (Korean/English), advocacy and negotiation with health care providers and community resources to assist [the Sons] in their day-to-day activities during the pending litigation, investigation services, research, paralegal support to the attorney representing [the Sons] in their claims, acting as a liaison between [the Sons'] attorney and the Korean community and other support services to [the Sons] and their attorney as may be required from time to time.

Consultant will cooperate and work with [the Sons'] attorney and agrees to carry out appropriate tasks based on her

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skills to assist in the pending litigation. Consultant will always be available for any court proceeding, deposition, meeting with Koreans or any other time her appearance is appropriate or requested. It is understood, however, that under no circumstances is [Park] to be engaged in any activity that may be construed as providing legal services.

By means of this agreement, [the Sons'] attorney is hereby authorized and instructed to pay to [Park] a sum equal to 6.5% of any recovery ... if the case is tried, or 5% if the case is settled [the Sons'] receive from any source for the injuries sustained [by Mr. Son]. (sic) Said sums are to be paid to [Park] before any sums are turned over to [the Sons].

Any sums payable under the terms of this agreement are separate and apart from any fee agreement [the Sons] may have reached with their attorney and the terms of this agreement are in no way related to such separate agreement [the Sons] have with their attorney.

(Emphasis added).

Attorney Stein apparently was present when this agreement was signed by the consultant and Ms. Son. He initialled that portion of the agreement that set forth the percentages to be paid to Ms. Park, evidencing his power to disburse money to her directly. Additionally, he signed a statement at the bottom of the agreement acknowledging that he "agree[ed] to follow the terms of this agreement and to disburse funds to Jennifer Park in accordance with its terms when and if a recovery is obtained for [the Sons]."

On 3 December 1992, Ms. Son signed two new retainer agreements with the law firm. The new agreements differed from each other in only one significant way. One retainer indicated that the firm's legal fees would equal a sum of 28.5% of the recovery if the matter settled and 33.33% if the case was tried. The other agreement set the fees, on a similar bifurcated scheme, at 23.5% and 26.83%, respectively. Mr. Son contends that the two retainer agreements were signed in an effort to conceal the illegal nature of the contract between

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appellees from Mr. Son and others. Specifically, he indicates that the 23.5% and 26.83% fee values result from the [689 A.2d 650] subtraction of Ms. Park's fee from the fee values used in the other contemporaneously executed agreement. Appellees contend that this is a mere coincidence. The two separate agreements are, they assert, the result of standard fee negotiations. Mr. Stein testified that he did not know the specifics of the financial agreement between the Sons and Ms. Park when first approached. He acknowledged that he later knew that Ms. Park had been engaged to help the family by providing many services, including finding a lawyer. Evidence adduced by Mr. Son, however, shows that, at least on one prior occasion, Mr. Stein had dealt with Ms. Park in a similar situation and knew the nature of her services.

Mr. Stein and the law firm prepared for the trial of Mr. Son's personal injury action. Ultimately, they helped Mr. Son settle that case for $4.85 million. The firm prepared a settlement sheet, ultimately signed by the Sons and witnessed by Mr. Stein. That settlement sheet revealed the following, in pertinent part:

Total Recovery: $4,850,000.00
                Less:
                 Attorney's Fees: $1,382,250.00
                 (28.5%)
                 Legal Costs: $ 24,865.22 4
                 Outstanding Medical Bills: $ 500,424.18
                Net Recovery: $2,942,460.60
                4. These costs included $396.74 for a Korean interpreter, a service Ms. Park
                 contends she performed.
                

Nowhere on the final settlement sheet ⁵, or the proposed settlement sheets supplied to Mr. Son previously, did the law firm reveal the fees paid to Ms. Park. In fact, the firm issued a client trust fund check payable to itself on 11 January 1994 for $1,139,750.00. That sum is precisely $242,500.00...