Parler & Wobber v. Miles & Stockbridge, P.C.

HARRELL, Judge. Pursuant to Maryland Code (1974, 1998 Repl.Vol.), Courts & Judicial Proceedings Article (CJP), §§ 12-601, et seq. 1 , the ⁶⁷⁶ Maryland Uniform Certification of Questions of Law Act, and Maryland Rule 8-305 2 , the United States District Court for the District of Maryland (Smalkin, J.) certified the following questions for our consideration: I. May a lawyer, who is being sued by a former client for malpractice, obtain contribution or indemnification from a ⁶⁷⁷ successor lawyer stemming from the successor’s malpractice or negligent representation of the same client in the same matter?

II

May the first lawyer referred to above maintain such an action against the second lawyer when the former claims that the second lawyer negligently advised the client to settle the underlying case? We respond in the affirmative to both questions. STATEMENT OF FACTS Our response to the certified questions begins with the following factual background supplied by the U.S. District Court: Introduction This case stems from the tortured morass which asbestos litigation has become." The Plaintiff in this case [before the District Court] is Royal Insurance Company of America (“Royal”). Royal insured Salomon, Inc. Royal, as Salomon’s insurer, hired Miles [ & Stockbridge, P.C.] to defend Salo-mon in a lawsuit filed by Corinne Jerome in Baltimore City Circuit Court (the “Jerome litigation”).

(Jerome had previously filed suit against Salomon in New York.) Jerome initiated the Maryland suit to recover damages stemming from her husband’s alleged exposure to asbestosis. Miles represented Salomon for a short time in the initial stages of the Jerome litigation. As will be discussed in more detail below, Royal eventually discharged Miles and retained Par-ler [ & Wobber] to represent Salomon. By that point, a default had been lodged against Salomon in the Jerome litigation.

Eventually, Royal, on the advice of Parler, decided to settle the Jerome litigation for approximately $1.6 million. Royal is now suing Miles for malpractice, seeking over $1.6 million in damages (the “Royal litigation”). Royal claims that it was forced to settle the Jerome litigation due to Miles’ negligence in allowing a default judgment to be entered against it. Miles has answered and denies liability. ⁶⁷⁸ In addition, Miles has filed a third-party complaint against Parler, in essence seeking a contribution from it in case Miles is held to be liable to Parler [Royal].

Miles claims that Parler also acted negligently in its representation of Royal and either was the proximate cause of, or added to the extent of, the damages Royal suffered. Parler now argues in its motion to dismiss Miles’ Third Party Com: plaint that it cannot be held liable, as a matter of law, to Miles in this situation. The Jerome Litigation This case started with a run-of-the-mill asbestosis lawsuit. Apparently, Jerome originally initiated suit in New York.

According to Parler, she decided also to file in Maryland because she was worried that she would have statute of limitations problems in New York. Accordingly, she filed suit in Baltimore City Circuit Court in the fall of 1997, naming Salomon as defendant. According to Parler, service was affected on Salomon through its resident agent. No answer was originally filed and an initial Default Order and Notice of Default was issued in December, 1997.

Salomon then notified Royal of the lawsuit. Royal in turn hired Miles to defend the case on behalf of Salomon. Miles filed a motion to vacate the Default Order, which was granted by the Baltimore City Circuit Court in January, 1998. Rather than responding to the Complaint at that point, Miles removed the case to the United States District Court for the District of Maryland.

(It is at this point that Miles’ actions become the subject of the Royal litigation). Judge Blake, of this Court, remanded the case to the Baltimore City Circuit Court. Apparently, Miles assumed that the removal proceeding would stay the Circuit Court’s timely filing deadline for Salomon’s Answer. It did not.

Upon remand to the Circuit Court, Jerome filed a Motion to Enter a Default Judgment. Miles answered the Jerome Complaint the next day (well past the original date it was due following the vacation of the first Default Order). On May 8, 1998, the Baltimore City Circuit Court, Angelletti, J., granted Jerome’s motion ⁶⁷⁹ for Default Judgment. Miles unsuccessfully attempted to have that order reconsidered by Judge Angelletti, but he denied Salomon’s motion to vacate his order in August, 1998.

Soon after this failure of reconsideration, Royal discharged Miles and retained Parler, which entered its appearance in the Circuit Court on September 28, 1998. Previously, Miles had failed to identify third party defendants (the list was due on September 21, 1998). Parler in turn failed to file any third party complaints before the deadline of October 5, 1998. The parties dispute whether Miles’ failure to identify third party defendants would act as a bar to Parler actually filing third party complaints.

Over the next several months, Parler attempted to have Jerome’s suit dismissed, relying primarily on arguments that the dismissal of Jerome’s New York suit on statute of limitations grounds should have res judicata effect in Maryland and that a release Jerome had previously signed absolved Salo-mon of any liability. These efforts, including a denied request for a writ of mandamus from the Court of Appeals of Maryland, were unsuccessful. According to Miles, Parler never specifically requested the Circuit Court to vacate its default order. Instead, Miles alleges, Parler erroneously conceded the binding effect of the Court’s default judgement [sic].

While Salomon’s motion for summary judgment on the basis of Jerome’s release was pending, Royal, allegedly on the advice of Parler, settled with Jerome for $1.6 million. Malpractice Claims Royal initiated this lawsuit by alleging malpractice by Miles. Specifically, it claims that Miles committed malpractice when it: 1) allowed a default judgment to be entered against Salomon in the Jerome litigation; and 2) failed to identify third party defendants before the September 21, 1998 deadline issued by the Baltimore City Circuit Court. Royal asserts that Miles’ negligence proximately caused Royal to settle with Jerome for $1.6 million, despite Parler’s ⁶⁸⁰ efforts to avoid the effect of the default order.

Royal has not sued Parler for malpractice. Miles filed a third-party complaint against Parler. Miles alleges three specific acts of negligence in Parler’s representation of Salomon: 1) it failed to argue either to the Circuit Court or on appeal (via the writ of mandamus) the appropriate liberal standard for the vacation of an entry of a default order before it becomes a final default judgment [3] ; 2) that Parler could have filed third-party complaints, but failed to do so, before October 5,1998; and 3) that Parler negligently advised Royal to settle the Jerome litigation far in excess of any reasonable settlement value. As a result of this negligent representation, Miles claims that it is entitled to contribution and/or indemnification from Parler for any liability it has towards Royal.

(Miles also raises these issues as a defense to Royal’s claim.) [4] ⁶⁸¹ I. Under the Certified Questions of Law Act, this Court’s statutorily prescribed role is to determine only questions of Maryland law, not questions of fact. See Reed v. Campagnolo, 332 Md. 226, 228 , 630 A.2d 1145, 1146 (1993); Food Fair Stores, Inc. v. Joy, 283 Md. 205, 219, n. 7 , 389 A.2d 874, 882 (1978); Mercantile-Safe Deposit and Trust Co. v. Purifoy, 280 Md. 46, 55 , 371 A.2d 650, 655 (1977). For purposes of our analysis, we accept the facts as submitted by the certifying court. See Reed, 332 Md. at 228 , 630 A.2d at 1146 ; Food Fair Stores, Inc., 283 Md. at 219, n. 7 , 389 A.2d at 882 .

Furthermore, we confine our legal analysis and final determinations of Maryland law to the questions certified. See Reed, 332 Md. at 228-29 , 630 A.2d at 1146 ; Toll v. Moreno, 284 Md. 425, 437 , 397 A.2d 1009, 1015 (1979). We are presented with an issue of first impression in Maryland: when a client sues former counsel for professional malpractice, may that former counsel implead the client’s successor counsel for contribution and indemnification where it alleges that successor counsel’s professional negligence in the same matter contributed to the injury suffered by the client? We hold that such a claim may be maintained.

In so holding, we must resolve two competing interests: the right for a joint tortfeasor to seek contribution or indemnification from an assertedly common liable party and the need to protect the attorney-client privilege. Miles argues that it has a statutory right to implead Parler for contribution or indemnification under the Maryland Uni ⁶⁸² form Contribution Among Tort-Feasors Act (“UCATA”), Maryland Code Annotated (1974, 1998 RepLVol.), Courts & Judicial Proceedings Article, §§ 3-1401, et seq. 5 , which contains no express recognition of or exception for the attorney-client privilege issue, and attendant ethical implications, presented here. It asserts that the very purpose of UCATA is served by its impleader action because the statute “ensures that the costs of injuries is distributed fairly among joint tort-feasors by allowing defendants an opportunity to assert a claim that the plaintiff for whatever reason has not asserted on his own. The plaintiff still may choose whom to name as a defendant, but the defendant may then seek contribution from those tortfeasors ignored by the plaintiff.” Parler, in reply, argues that despite UCATA’s provisions, for public policy reasons, it cannot be liable to Miles for contribution or indemnification in cases where the common client sues former counsel for malpractice, but not successor counsel.

Parler asserts that an impleader action by former counsel against its successor would breach the attorney-client ⁶⁸³ relationship by invading the successor attorney’s duty of confidentiality owed to the client and the attorney-client privilege. In particular, “allowing such a claim would create a potential conflict between the interests of the client and the inherent self-protection instinct of the successor attorney.” In essence, Parler warns that if this Court allows Miles’ impleader action under UCATA, we will open Pandora’s box by providing a third party with the right to interfere in the sacred attorney-client relationship. In contrast, Miles stresses that successor counsel, if given immunity from such a suit, could abuse its position and insulate its conduct in cases where its negligent representation of the client contributes to or exacerbates the client’s loss and that allowing a suit under UCATA only will further stimulate current counsel’s duty to act diligently in its representation. Miles further requests that we adopt the legal notion that once a former client sues its former counsel, all privileges and immunities between those parties and between the client and successor counsel are waived in all matters relating to the malpractice suit.

A. UCATA has deep historical underpinnings. At common law, Maryland generally recognized indemnification only in cases where a wrongful act of a party imposed liability on a third party; in such instances the latter could seek indemnification from the party actually guilty of the wrongful act. See Baltimore & O.R. Co. v. County Comm’rs of Howard County, 113 Md. 404, 414 , 77 A. 930, 933 (1910). Among negligent joint tortfeasors, however, courts, lost in dogmatic ritual, stubbornly refused to recognize a common law right of contribution. 6 See Franklin v. Morrison, 350 Md. 144, 154 , 711 ⁶⁸⁴ A.2d 177, 182 (1998); Montgomery County v. Valk Mfg.

Co., 317 Md. 185, 190 , 562 A.2d 1246, 1249 (1989) (discussing Baltimore & O.R. Co., 113 Md. at 414 , 77 A. at 933 ). The seed for this prohibition was planted in the case of Merryweather v. Nixon, 8 Term. Rep. 186, 101 Eng. Rep. 1337 (1799).

In Merryweather, the culpable parties collectively acted intentionally against, and caused harm to, the plaintiff, but one of the wrongdoing parties was prohibited from seeking recovery against the other. See Valk Mfg. Co., 317 Md. at 189 , 562 A.2d at 1248 . The reasoning underlying Merryweather was that no party who acted wrongfully and intentionally against the injured plaintiff should be able to recover anything as a result of that party’s actions.

See id. American courts, perhaps arbitrarily, if not illogically, extended Merryweather to bar negligent joint tortfeasor contribution actions. See 3 Fowler V. Harper, et al., The Law of Torts § 10.2, at 40 (1986 and 1998 Supp,)(“Merryweather v. Nixon involved deliberate and intentional acts by the tortfeasor and thus, as a precedent, does not support the broad proposition for which it is so frequently cited in the American cases”). The application of Merryweather’s reasoning to multiple negligent tortfeasor situations results in the following scenario: [W]hen the plaintiff enforced a joint and several judgment entirely against A, A was not allowed to recover contribution from B for any part of what he had paid.

The result ⁶⁸⁵ was that although both A and B were at fault, A paid all the damages and B paid none. The rule grew up in the day when joint and several liability applied only to tortfeasors who acted in concert to carry out intentional torts. In that setting, denial of contribution was equivalent to saying that an intentional tortfeasor cannot use the courts to enforce an equitable loss sharing. Dan B. Dobbs, The Law of Torts § 386, at 1078 (2000).

Merry iveather’s extension to bar negligent joint tortfeasor contribution actions came under sharp attack from courts and commentators: There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiffs whim or spite, or the plaintiffs collusion with the other wrongdoer, while the latter goes scot free. Valk Mfg. Co., 317 Md. at 189 , 562 A.2d at 1248 (citing Prosser and Keeton on Torts § 50, 337-38 (5th ed.1984)). See also 1 Stuart M. Speiser, et al., The American Law of Torts § 3:17, at 433 (1983 and 2000 Supp.).

Another unjust effect of the Merryweather extension was that it permitted the plaintiff, at his or her whim, to determine who should bear the costs of damages. See Valk Mfg. Co., 317 Md. at 195 , 562 A.2d at 1251 . In Maryland, legislative action was taken to expunge the inherent injustices of the Merryweather rule as it applied to contribution claims between negligent tortfeasors.

See Valk Mfg. Co., 317 Md. at 189-90 , 562 A.2d at 1248-49 ; Dan B. Dobbs, The Law of Torts § 386, at 1078 (2000); 1 Stuart M. Speiser, et al., The American Law of Torts § 3:19, at 446-50 (1983 and 2000 Supp.). Through UCATA’s enactment in 1941 “a statutory right of contribution among joint tortfeasors was created which did not exist at common law.” Central GMC, Inc. v. Helms, 303 Md. 266, 276 , 492 A.2d 1313, 1318 (1985). See also Valk Mfg.

Co., 317 Md. at 190 , 562 A.2d at 1248-49 . ⁶⁸⁶ Furthermore, the unfairness of allowing a plaintiff the power to pick and choose whom to sue for damages was alleviated by providing the defendant with the right to implead a responsible third party to share in the liability. 7 This “distribute[s] the burden of responsibility equitably among those who are jointly liable.” Valk Mfg. Co., 317 Md. at 189-90 , 562 A.2d at 1248 . Under UCATA, joint tortfeasors are defined as “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” CJP § 3-1401(c). See also Valk Mfg.

Co., 317 Md. at 191 , 562 A.2d at 1249 ; Central CMC, Inc., 303 Md. at 276 , 492 A.2d at 1318 . We have held that, in situations where only one potential defendant is sued by a plaintiff, that defendant’s right to contribution from a third party is predicated on the impleaded party’s direct liability to the plaintiff. See Valk Mfg. Co., 317 Md. at 193 , 562 A.2d at 1250 .

This means that as between a defendant and an impleaded party, there must be common ⁶⁸⁷ liability in tort to an injured person. See Valk Mfg. Co., 317 Md. at 192 , 562 A.2d at 1249 ; 1 Stuart M. Speiser, et al., The American Law of Torts § 3:21, at 455 (1983, 2000 Supp.). Courts and commentators have been careful to note a distinction between common liability and joint negligence. “Contribution rests on common liability, not on joint negligence or joint tort.

Common liability exists when two or more actors are liable to an injured party for the same damages, even though their liability may rest on different grounds.” Pautz v. Cal-Ros, Inc., 340 N.W.2d 338, 339 (Minn.1983). See also 1 Stuart M. Speiser, et al., The American Law of Torts § 3:21, at 455-56 (1983, 2000 Supp.). In this sense, contribution is derivative in nature rather than a new cause of action. See Valk Mfg.

Co., 317 Md. at 192 , 562 A.2d at 1249-50 . Because common liability requires no concerted negligence, the tortious conduct among joint tortfeasors leading to a plaintiffs harm may be concurrent. See Trieschman v. Eaton, 224 Md. 111, 115 , 166 A.2d 892, 894 (1961). It has been noted aptly that: this requirement of common liability does not necessarily restrict the right to recover contribution to such cases as those in which the liability is imposed for some single act of tortious commission or omission in which all the tortfeasors concerned joined.

This aspect usually arises in negligence cases. For a right to contribution to exist among tortfea-sors guilty of negligence, it is not ordinarily essential that there be joint negligence in the sense that all the wrongdoers fail in the performance of an identical duty; contribution may be had among independent tortfeasors whose combined negligence, or whose omission of separate acts of care at the same instant, concur and contribute to the same injury. 1 Stuart M. Speiser, et al., The American Law of Torts § 3:21, at 456-57 (1983, 2000 Supp.)(emphasis in original). It is from this statutory cause of action, and its historical underpinnings, that Parler wishes to carve an exception that it perceives will avert a threat to the attorney-client relationship. ⁶⁸⁸ B. Confidentiality is a core value in the attorney-client relationship. The duty of confidentiality of information is enshrined in the Maryland Rules of Professional Conduct (“RPC”).

Rule 1.6(a) states that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).” The reasoning behind this confidentiality is explained by the RPC 1.6 Comment: The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance. Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client’s confidences must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as-to embarrassing or legally damaging subject matter. The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. See also 2 Ronald E. Mallen and Jeffery M. Smith, Legal Malpractice § 14.5, at 242 (4th ed.1996); Noble v. Bruce, 349 Md. 730, 758 , 709 A.2d 1264, 1278 (1998)(confidentiality' blocks interference with an attorney’s duty of loyalty to a client, avoids situations that compromise an attorney’s ability to ⁶⁸⁹ zealously advocate on behalf of a client, and prevents forced attorney disclosures of confidences that the client may not have wanted revealed).

There are notable exceptions under RPC 1.6(b), however, which make the rule of confidentiality not absolute: (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another; (2) to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services were used; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceedings concerning the lawyer’s representation of the client[;or] (4) to comply with these Rules, a court order or other law. There is a critical distinction, not acknowledged clearly by Parler, between confidentiality required by ethical rules and the evidentiary basis of the attorney-client privilege. More protection is provided to communications within the attorney-client relationship under one than the other. The confidentiality umbrella of the ethical rule encompasses “all situations except where the ‘evidence is sought from the lawyer through compulsion of law.’ ” In re Criminal Investigation No. 1/242Q, 326 Md. 1, 5 , 602 A.2d 1220, 1222 (1992)(citing RPC 1.6 Comment)(emphasis in opinion). “In the latter situation, only the attorney-client privilege, not the broader rule of confidentiality, protects against disclosure.” Id.

Thus, relevant evidence sought through discovery, unless protected by the attorney-client privilege, must be produced and the ⁶⁹⁰ ethical duty of confidence takes a back seat to the quest for truth. Stated differently, the search for truth is paramount to just disposition of cases in controversy and Maryland’s broad discovery rules take precedent over the attorney’s ethical duty of confidentiality unless protected by law. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 405 , 718 A.2d 1129, 1133 (1998)(discovery rules promote liberal disclosure); Berrain v. Katzen, 331 Md. 693, 697 , 629 A.2d 707, 708-709 (1993)(diselosure of all facts promotes fairness and sound administration of justice). The attorney-client privilege is carefully guarded by the courts.

It is “ ‘the oldest of the privileges for confidential communications known to the common law.’ ” E.I. du Pont de Nemours & Co., 351 Md. at 414 , 718 A.2d at 1133 (citing Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677, 682 , 66 L.Ed.2d 584, 591 (1981)). See also Harrison v. State, 276 Md. 122, 131 , 345 A.2d 830, 836 (1975)(explaining that the privilege extends at least as far back as the reign of Elizabeth I (1558-1603)). Generally, the attorney-client privilege bars compelled disclosure, without the client’s consent, of attorney-client communications made in confidence between the attorney and client. See In re Criminal Investigation No. 1/242Q, 326 Md. at 5 , 602 A.2d at 1221-22 ; State v. Pratt, 284 Md. 516, 519 , 398 A.2d 421, 423 (1979); Harrison, 276 Md. at 133-34 , 345 A.2d at 837 .

It is codified in Maryland Code (1974, 1998 Repl.VoL), Courts and Judicial Proceeding Article § 9-108, which provides that “[a] person may not be compelled to testify in violation of the attorney-client privilege.” The privilege is grounded in the public policy of encouraging a client to consult freely with and seek legal advice from an attorney without fear of the attorney being forced to testify or produce evidence as to the confidences in various judicial or other proceedings. See In re Criminal Investigation No. 1/242Q, 326 Md. at 5 , 602 A.2d at 1221-22 ; Pratt, 284 Md. at 520 , 398 A.2d at 423 ; Harrison, 276 Md. at 134 , 345 A.2d at 837 . It is this uninhibited sharing of information between client and attorney that aids an attorney in effective representation and reinforces the legal profession’s overall integrity. See United ⁶⁹¹ States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991).

Moreover, it has been noted that, while never granted express constitutional lineage in criminal cases, the privilege is linked to the constitutional guarantee of effective assistance of counsel and that strict limitations on its application could undermine this basic guarantee. See Pratt, 284 Md. at 520 , 398 A.2d at 423 ; Harrison, 276 Md. at 135 , 345 A.2d at 838 . This Court has adopted Wigmore’s definition of the privilege: (1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection [may] be waived. E.I. du Pont de Nemours & Co., 351 Md. at 415 , 718 A.2d at 1138 (citing Harrison, 276 Md. at 135 , 345 A.2d at 838 , quoting 8 John H. Wigmore, Wigmore on Evidence § 2292, at 554 (McNaughton rev. ed.1961)).

The attorney-client privilege is not absolute and “is not an inviolable seal upon the attorney’s lips.” Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 446 (S.D.Fl.1980) (citing Laughner v. U.S., 373 F.2d 326, 327 (5th Cir.1967)). Invocation of the privilege can create evidentiary inequities between parties during discovery and the absence of fact and truth at trial. “Because the application of the attorney-client privilege withholds relevant information from the fact finder, the privilege contains some limitations and should be narrowly construed.” E.I. du Pont de Nemours & Co., 351 Md. at 415 , 718 A.2d at 1138 . Only the client has power to waive the attorney-client privilege. See City of College Park v. Cotter, 309 Md. 573, 591, 525 A.2d 1059, 1067 (1987).

Nonetheless, express and implied waivers of the privilege are universally recognized limitations on client power to hold the privilege. See Harrison, 276 Md. at 137-38 , 345 A.2d at 839-40 . Wigmore has explained the premise of implied waiver as follows: ⁶⁹² There is always also the objective consideration that when his [the client’s] conduct touches a certain point of disclosure, fairness requires that his privileges shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.

Fraidin v. Weitzman, 93 Md.App. 168, 228 , 611 A.2d 1046, 1076 (1992)(citing 8 Wigmore, Evidence § 2327, at 636). In contrasting express waiver to implied waiver of the privilege, we have cautioned that: [s]ince a voluntary disclosure deprives a subsequent claim of privilege based upon confidentiality, and since traditionally waiver is described as the intentional relinquishment of a known right, in determining waiver by implication “regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency.” Harrison, 276 Md. at 138 , 345 A.2d at 840 (citations omitted). See also Wender v. United Serv. Auto.

Ass’n, 434 A.2d 1372, 1374 (D.C.1981)(courts must consider fairness in assessing the issue of implied waiver). Maryland recognizes that the attorney-client privilege and other professional-client privileges are waived in any proceeding where the client challenges its hired professional’s activity or advice. See Sears, Roebuck & Co. v. Gussin, 350 Md. 552, 565 , 714 A.2d 188, 194 (1998)(accountant-client privilege is waived “when the client injects the professional activity or the advice of an accountant as an issue in a particular case”); State v. Thomas, 325 Md. 160, 174 , 599 A.2d 1171, 1177-78 (1992) (attorney-client privilege “is waived by the client in any proceeding where he or she asserts a claim against counsel of ineffective assistance and those communications, and the opinions based upon them are relevant to the determination of the quality of counsel’s performance”); Fraidin, 93 Md.App. at 229 , 611 A.2d at 1076 (where client sues former counsel, former counsel is entitled to reveal privileged information provided it is necessary to the defense ⁶⁹³ of the client’s charge). Cf RPC 1.6 and Comment (“[i]f the lawyer is charged with wrongdoing in which client’s conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge” but the “lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation”).

These waiver rules are based, in part, on the premise that the client cannot use the advice of a professional as sword to prove the client’s case against former counsel while at the same time asserting the privilege as a shield to prevent disclosing harmful information. See ST Sys. Corp. v. Maryland Nat. Bank, 112 Md.App. 20, 36 , 684 A.2d 32, 35 (1996).

Accord GAB Business Services, Inc. v. Syndicate 627, 809 F.2d 755, 762 (11th Cir.1987)(privilege is a shield and not a sword). It has been said that “a privileged party cannot fairly be permitted to disclose as much as he pleases and then to withhold the remainder to the detriment of the defendant.” Greater Newburyport Clamshell Alliance v. Public Serv. Co. of New Hampshire, 838 F.2d 13, 20 (1st Cir.1988). To this end, “[a]s hallowed as the attorney-client privilege is, it does not lightly tolerate abuse.” Peterson v. Wallace Computer Serv., Inc., 984 F.Supp. 821, 824 (D.Vt.1997).

Accord Clark v. United States, 289 U.S. 1, 15 , 53 S.Ct. 465, 469 , 77 L.Ed. 993, 1000 (1933)(“The privilege takes flight if the relation is abused”). The question in this case is whether we should extend the implied waiver rule more broadly to attorney-client privileged communications between the client and successor counsel when the client, by claiming malpractice or negligence against former counsel, has injected an issue that also implicates successor counsel’s negligence in the same matter. C. As has been argued by the parties, the courts of our sister states are split on the issue of whether contribution claims may be asserted against negligent, successor attorneys. Illinois, Massachusetts, New York, Washington, and Wisconsin ⁶⁹⁴ recognize such actions, under certain circumstances, while California, the District of Columbia, Minnesota, New Jersey, Pennsylvania, and Utah seemingly do not.

Appellants cite to cases from California, the District of Columbia, Minnesota, New Jersey, Pennsylvania, and Utah to support the proposition that public policy prohibits former counsel from asserting a third party claim of contribution or indemnification against successor counsel. See Holland v. Thacker, 199 Cal.App.3d 924 , 245 Cal.Rptr. 247 (1st 1988); Goldfisher v. Superior Court, 133 Cal.App.3d 12 , 183 Cal.Rptr. 609 (2d 1982); Gibson, Dunn, & Crutcher v. Superior Court of Los Angeles County, 94 Cal.App.3d 347 , 156 Cal.Rptr. 326 (2d 1979); Waldman v. Levine, 544 A.2d 683 (D.C.1988); Melrose Floor Co., Inc. v. Lechner, 435 N.W.2d 90, 91-92 (Minn.Ct. App.1989); Olds v. Donnelly, 150 N.J. 424 , 696 A.2d 633, 643 (1997); Mentzer & Rhey, Inc. v. Ferrari, 367 Pa.Super. 123 , 532 A.2d 484, 486-87 (1987); Hughes v. Housley, 599 P.2d 1250, 1253-54 (Utah 1979). But see Angelos v. Lloyd, 106 F.3d 442 (D.C.Cir.1996)(unpublished disposition); Parker v. Morton, 117 Cal.App.3d 751 , 173 Cal.Rptr. 197 (4 th 1981). These courts refuse to recognize a direct action in negligence 8 or third party action in contribution or indemnification for fear of the adverse impact such an action would have on the attorney-client relationship.

A myriad of concerns have been ⁶⁹⁵ voiced by these courts. Some feared that the duty of loyalty would be split between client and former counsel if the duty of care was owed to each, see Gibson, Dunn & Crutcher, 156 Cal.Rptr. at 330-31 ; Olds, 696 A.2d at 643 ; Housley, 599 P.2d at 1254 , or that successor counsel might feel compelled to act in its self-interest, rather than the client’s interest, in order to avoid a third party action, see Holland, 245 Cal.Rptr. at 251-52 ; Waldman, 544 A.2d at 693 . The Holland court noted as well that successor counsel might be discouraged from taking a case where it might be sued or, after the taking the case, may feel it necessary to no longer participate in the client’s litigation. See 245 Cal.Rptr. at 250-51 .

The result would be that the client is deprived of the attorney of choice or may be left with great difficulty in finding a competent replacement. See id. Foreseeing all of these problems, the Holland court warned that a third party complaint by former counsel would be used as an ill-motivated tactical device to confuse, disorient, and spread chaos in the opponent’s camp. See 245 Cal.Rptr. at 250-51 .

On the other side of the coin, two appellate Illinois courts have allowed a former attorney to implead a successor attorney when the client only sues the former attorney but both attorneys contributed to the client’s injury. In Goran v. Glieberman, 276 Ill.App.3d 590 , 213 Ill.Dec. 426 , 659 N.E.2d 56, 61 (1st 1995), the court explained that under Illinois law “an attorney may seek contribution from a subsequent attorney where both attorneys worked on the same underlying cause.” (discussing Faier v. Ambrose & Cushing, P.C., 154 Ill.2d 384 , 182 Ill.Dec. 12 , 609 N.E.2d 315 (1993)). The court rejected the contention that continued representation of the client was not grounds to dismiss former counsel’s suit against the successor attorney. Under this premise, said the court, “substitute counsel, no matter how egregious their conduct, would be immunized from suit simply because the client whom they continue to represent chooses not to sue her current counsel.” Goran, 213 Ill.Dec. 426 , 659 N.E.2d at 61 .

Accord Brown-Seydel v. Mehta, 281 Ill.App.3d 365 , 217 Ill.Dec. 131 , ⁶⁹⁶ 666 N.E.2d 800, 802 (6th 1996)(citing Goran), appeal denied, 168 Ill.2d 583 , 219 Ill.Dec. 560 , 671 N.E.2d 727 (1996). The Supreme Judicial Court of Massachusetts has reached a similar conclusion. In Maddocks v. Ricker, the Court held: An issue that could be independent of the underlying controversy is the question whether the defendant attorneys have any valid claim against Casson [as a third-party successor attorney]. The plaintiffs [as clients] are probably correct that Casson could not be directly liable to the defendant attorneys [as former attorneys for the client] for his negligence in handling the plaintiffs’ claims against Gove.

That fact is irrelevant, however, because, as we read the third-party complaint, the defendant attorneys’ claim against Casson is founded on Casson’s obligation of contribution if it is determined that the plaintiffs lost their claims against Gove because both the defendants and Casson were negligent. Further, in considering another issue collateral to the underlying dispute, we see no valid basis for argument that, as a matter of law on the face of the pleadings, the alleged negligence of the defendants and of Casson did not result in joint liability for the same injury to the plaintiffs, thus justifying contribution. When Lawyer II brings an action for malpractice on behalf of a client against Lawyer I, Lawyer II is not immunized from liability to Lawyer I for contribution if the negligence of each caused the same injury to the client. 403 Mass. 592 , 531 N.E.2d 583, 589 (1988) (citations omitted). Nonetheless, in allowing former counsel to implead client-plaintiffs current counsel for contribution, the Court expressed concerns that the attorney-client privilege and legal ethical considerations were at risk in such actions and that practical judicial measures must be taken to balance the contribution right against the attorney-client privilege.

The Court cautioned: A decision to add a plaintiffs lawyer as a third-party defendant has significant consequences to the client because the client must lose the attorney of his choice or must await ⁶⁹⁷ a decision as to whether his current attorney (Lawyer II) might be liable for contribution. The decision ... to allow a third-party complaint (or the decision not to dismiss such a complaint filed of right ... ) requires careful and prompt judicial attention. If the merits of the claim for contribution can be addressed and ruled on immediately, the question whether a plaintiff needs new counsel should be answered at an early stage in the case. The judge should be alert to the possibility that Lawyer I is using the cross-complaint as a tactical device to disqualify Lawyer II.

At the same time, Lawyer II should not be entitled to use his continued representation of the client to immunize himself from the consequences of his own negligent conduct. We conclude, on the issues open for consideration in this appeal, that Casson may not properly represent the plaintiffs and at the same time be a third-party defendant. Maddocks, 581 N.E.2d at 589. In Schauer v. Joyce, the Court of Appeals of New York allowed a former attorney to seek contribution against the attorney who replaced him for negligence causing the claimed injury upon the plaintiff-client.

See 54 N.Y.2d 1 , 444 N.Y.S.2d 564 , 429 N.E.2d 83, 85 (1981). The Court rejected the successor attorney’s argument that there was no contractual privity or duties between former and successor attorneys in the case and, therefore, it owned no contribution to the defendant. The Court held that existence of a duty between the wrongdoer attorneys was not a necessary predicate for the former attorney to sue the successor. See Schauer, 444 N.Y.S.2d 564 , 429 N.E.2d at 84 .

See also Rosner v. Paley, 65 N.Y.2d 736 , 492 N.Y.S.2d 13 , 481 N.E.2d 553 , 555 (1985)(citing Schauer); Hansen v. Brognano, 137 A.D.2d 880, 881 , 524 N.Y.S.2d 862 (1988)(citing Schauer and explaining that “[a]n attorney sued for malpractice is entitled to commence a third-party claim for contribution against a subsequent attorney whose negligence has contributed to or aggravated the plaintiffs damages” and “[t]his same principle applies where, as here, a claim for indemnification is asserted”); Catania v. Lippman, 98