This is an unpublished case which had an interesting result. Plaintiff was represented by the Defendant attorney in her divorce case. Her husband, David Whittlemore, was apparently in financial difficulties. David Whittlemore offered an unusual settlement term to his soon to be ex-wife. He claimed that his wealthy brother Harvey would guarantee his maintenance obligations to her. In 2011, David filed for bankruptcy and the plaintiff contacted her lawyer who, after some correspondence, revealed that the wealthy brother had never signed the guarantee. Plaintiff then brought a legal malpractice claim against her former attorney.
The court set forth the facts as follows:
On October 11, 2007, Ms. Whittemore and her husband, Mr. David Whittemore, placed a settlement agreement on the record. Under the agreement, David Whittemore agreed to make monthly alimony payments until December 2021. He also agreed to procure a guaranty for his alimony payments from his wealthy brother, Mr. Harvey Whittemore.
On July 8, 2008, the court entered the judgment of divorce, which incorporated the settlement agreement. At the hearing, Mr. Stein informed Ms. Whittemore that he had not yet obtained the signed guaranty, but that her ex-husband’s attorney would get it after the hearing. After the hearing, Mr. Stein allegedly told Ms. Whittemore, “[Y]ou never have to worry about money in your life. You have a Guaranty that you can take to the bank.”
Over the next month, Ms. Whittemore received copies of communications indicating that Harvey Whittemore had still not signed the guaranty. In one communication, the ex-husband’s attorney wrote that Harvey Whittemore “will sign the guaranty upon his return” from a trip outside of the country. In another, the ex-husband’s attorney asked Mr. Stein whether he should forward the guaranty once Harvey Whittemore had signed it.
David Whittemore remained current on his monthly alimony obligations until November 2011. When he defaulted, Ms. Whittemore requested a copy of the signed guaranty from Mr. Stein. Mr. Stein said that he could not find the document.
By February 2012, after another series of letters between Mr. Stein and the ex-husband’s attorney, it became clear that Harvey Whittemore had never signed the guaranty.
The trial court granted summary judgment for the lawyer. It held that because Harvey had no obligation to sign the guarantee, the lawyer was not at fault for failing to obtain it. The Court of Special Appeals of Maryland reversed. It held that the allegations were sufficient to state a claim and to defeat summary judgment. The Court remanded for further proceedings. The Court noted that the lawyer could have refused to enter judgment in the divorce matter until he had proof that the guaranty was signed.
Comment: if the allegations are true, the lawyer left himself in a vulnerable position by allowing the divorce case to reach judgment before he had a copy of the guaranty.