Vogel v. Touhey

Decision Date02 July 2003
Docket NumberNo. 01435,01435
Citation151 Md. App. 682,828 A.2d 268
PartiesKaren A. VOGEL v. T. Joseph TOUHEY.
CourtCourt of Special Appeals of Maryland

Christopher G. Hoge (Crowley, Hoge 7 Fein, P.C., on brief), Washington, DC, for appellant.

Kathleen M. Bustraan (P. Christian Dorsey, Lord & Ship, P.A., on brief), Baltimore, for appellee.



This legal malpractice case is rooted in a divorce action involving Karen Vogel, appellant, and her former husband, Harold Alfert, M.D. During the pendency of the divorce case, Vogel believed that Alfert had deceived her in fashioning their property settlement agreement by failing to fully disclose the couple's marital assets. Accordingly, appellant retained T. Joseph Touhey, Esquire, appellee, to represent her in an effort to uncover the full extent of the marital assets and to renegotiate her property settlement agreement with Dr. Alfert.

Unhappy with appellee's performance, Vogel discharged Touhey. A few days later, Vogel settled her dispute with Dr. Alfert for $50,000, a fraction of the additional sum she had hoped to recover. Thereafter, appellant filed a legal malpractice suit against Touhey in the Circuit Court for Montgomery County, asserting that she had settled her divorce case on unfavorable terms because appellee: 1) failed "to take adequate discovery and investigative efforts to obtain a complete and accurate assessment of the Alferts' marital assets"; 2) fail[ed] "to properly analyze and evaluate the discovery materials ... produced by Dr. Alfert"; 3) "fail[ed] to employ a competent professional, such as an accountant, to help identify and evaluate the marital assets"; and 4) "recommend[ed] a settlement for an inadequate amount without full knowledge and understanding of the marital assets."

Appellee filed a motion to dismiss, claiming that appellant's malpractice suit was barred by the doctrine of judicial estoppel. In support of his motion, appellee submitted the transcript from the hearing in the divorce case, at which appellant represented that her divorce settlement was "fair and equitable." After the malpractice court (Rowan, J.) granted appellee's motion to dismiss, Vogel noted this appeal. She presents us with a single issue:

Whether Appellant's lawsuit for legal malpractice ought to have been barred, under the doctrine of judicial estoppel, by her prior statement to the Court, in the underlying divorce hearing, that the marital settlement agreement which had been negotiated by Appellee, and about which she now complains in her malpractice action, was "fair and equitable[,]" where Appellant also complained at the same hearing about Appellee's lack of diligence in investigating her then husband's finances, and where she had had an inadequate opportunity, as of the time of the divorce hearing, to fully review financial records supplied by her then husband in discovery.

For the reasons that follow, we shall affirm.


Appellant, who is a lawyer, and Dr. Alfert, who is a urologist, were married on January 25, 1988; no children were born to the union. The couple separated on June 6, 1999. On March 6, 1999, appellant and Dr. Alfert entered into a property settlement agreement (the "Property Agreement"). Appellant, who has worked in the Criminal, Asset Forfeiture and Money Laundering Division of the Justice Department for over seventeen years, was not represented by counsel in connection with the Property Agreement.

The Property Agreement provided for the equal division of the couple's marital assets, valued at about two million dollars under the Property Agreement. According to appellant, she subsequently discovered that Dr. Alfert had failed to disclose "substantial [marital] assets" during the negotiation of the Property Agreement, with the intent of depriving her of her fair share of the parties' assets, and that he had diverted and/or dissipated marital assets. Appellant alleged that the "pile of [marital] assets that should have been divided" amounted to three or four million dollars.

Accordingly, on or about January 18, 2001, appellant retained appellee to represent her in the divorce case, then pending in the Circuit Court for Montgomery County. She sought legal representation because she "believed that [the] `Property Agreement' executed on March 6, 1999, by her and her then husband was unfair and had been obtained by fraudulent misrepresentations, due to [the] lack of full financial disclosure by the husband."

During appellant's initial consultation with Touhey, she told him that the marital assets totaled "substantially more" than the two million dollars that had been the subject of the Property Agreement. Appellant asserted that Dr. Alfert failed to divulge various brokerage accounts, bank accounts, and pension funds. Appellant specifically inquired whether appellee "had sufficient time and interest to handle a domestic case that involved thorough investigation and analysis of the parties' complex financial situation." Touhey assured appellant that "he had sufficient time to devote to such a complex case."

In connection with Touhey's representation of appellant, the parties executed a retainer agreement.2 It provided, in part:

You [i.e., appellant] seek to contest the validity of a Property Settlement Agreement with your estranged husband entered into [in] 1999. You claim that marital assets were not disclosed or accounted for by him in the preparation of that Agreement which was [prepared] without counsel.
I [i.e., appellee] have discussed with you candidly the prospects for such a claim and litigation. Obviously, it all depends on the discovery of those assets, and the identity and value of those assets.

(Emphasis added in the malpractice complaint).

On February 1, 2001, appellee filed an Amended Counter-Complaint for Absolute Divorce in the underlying divorce case, challenging the Property Agreement. It stated, in part:

[O]n or about March 6, 1999, [appellant and Dr. Alfert] executed a document entitled Property Agreement.... Additionally, despite the fact that this document specifically required both parties to make full financial disclosure of any and all assets, [appellant] has subsequently discovered, that [Dr. Alfert] withheld disclosure of substantial marital assets, of which he has unjustly deprived [appellant]. [Dr. Alfert] also failed to bargain in good faith and made material misrepresentations to [appellant].

Later, when Dr. Alfert opposed appellant's motion to postpone a hearing in the divorce case, appellee filed a response on appellant's behalf. It stated:

[Appellant] is challenging the validity of the Property Agreement, based upon [Dr. Alfert's] failure to disclose substantial marital assets at the time the parties executed the Property Agreement. In order for this issue to be resolved, it is quite apparent, that extensive financial documents must be obtained for numerous marital accounts.

In addition, in February 2001, appellee propounded discovery in the divorce case, including interrogatories and a request for production of documents. On or about March 6, 2001, Dr. Alfert responded to the discovery requests. Appellant alleged in the malpractice case that Dr. Alfert's responses were "incomplete and did not reveal critical information concerning marital assets."

According to the malpractice complaint, appellant "reviewed Dr. Alfert's initial responses to the interrogatories and document requests, noted many discrepancies[,] and regularly asked [appellee] questions, both orally and in writing, about specific marital assets." From February 2001 through April 2001, appellant allegedly made numerous written and oral requests to appellee to obtain more specific financial information from her husband.

Further, appellant alleged in the malpractice complaint that, in order for her to obtain the information needed to assess the nature and value of the marital assets, "the requests would have had to be augmented by subpoenas to financial institutions, depositions and analysis by a professional sophisticated in the area of asset identification and evaluation, such as an accountant." Although appellant "repeatedly requested" that appellee "issue subpoenas to financial institutions," the appellee, she averred, failed to do so.

On March 8, 2001, appellee wrote to Dr. Alfert's lawyer, requesting additional financial information from Dr. Alfert. According to Vogel, appellee "eventually received supplemental answers to interrogatories and additional documents which revealed the existence of previously undisclosed marital assets...." Nevertheless, appellant maintained that Touhey failed to "carefully review[ ] or analyze[ ]" the information "in time to have an impact on the ultimate outcome of the [divorce] case." Appellant also asserted that in March 2001, Touhey was too involved in other cases to devote the necessary time to her case. She alleged:

In or about March of 2001, on information and belief, [appellee] was heavily involved in motions and trial preparation in a high-profile criminal case in Anne Arundel County. From that time on, [appellee] seemed to have little time to spend on [appellant's] case. Most of the work done on the case, by [appellant's] observation, was performed by a young associate ... who seemed well-intentioned but clearly had difficulty understanding the complex financial records which had been produced. [The associate] also seemed to have little idea of how to obtain the necessary additional information which [appellant] was regularly requesting.

According to appellant, Dr. Alfert telephoned her in April 2001, asking why she had failed to respond to the settlement offer that had been communicated by his attorney. Appellant responded that she was never informed of the settlement offer. In the meantime, by letter of April 9, 2001, appellee wrote to appellant, advising that "it is essential that we...

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