U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

Shady Lawyer Beats Shady MD, JD in Contingency Fee Dispute

Jeannette Martello, M.D., J.D. is a very intelligent woman. After all, she possessed both an M.D. and a J.D. (from Boalt Hall, no less). Nonetheless, she was unable to clear the hurdle that was the bar exam, despite four tries in Kentucky and New York. She did, however, pass the Multistate Professional Responsibility Exam before moving on to practice as a medical malpractice consultant.

As a consultant, she worked with Joshua Santana, Esq. on medical malpractice cases. After she referred a patient from her medical practice to Santana, the two came to an agreement, reduced to writing, that paid her a contingent percentage of the fee if the case was settled favorably.

If you also passed the MPRE, your ethics alarms should be blaring. No fee-splitting with non-attorneys!

Shortly thereafter, he sent her a letter saying that the original deal violated ethics rules (duh) and that she should bill by the hour instead. She claimed that it was a wink-and-nod arrangement for the same amount.

She got approximately what she was due from that case (though he did stiff her a bit by deducing unreimbursed expenses). However, on two other cases, he really stiffed her. She claims that, though she unknowingly was due $100,000 in one case, she was paid only $27,000. In another, she received only $5,000 of the nearly $17,000 due. When she asked about it, he said that the settlement amounts were covered by a “gag order” or “confidentiality agreement,” but assured her that he “took care of [her]”.

Years later, when researching for a medical article, one of the families mentioned the amount of the settlement. Realizing she had been shortchanged, she sued for breach of contract and fraud.

Alas, courts won’t enforce contracts that are void as against public policy. Representing herself pro se, Dr. Martello, J.D. actually made a pretty intriguing argument (perhaps she should try one of the easier bar exams).

The issue she raises is an interesting question - are the Rules of Professional Conduct tantamount to public policy? She argues that the Kentucky Rules of Professional Conduct apply only to attorneys - not to non-lawyers like herself - and that public policy is dictated by the legislature, not the judiciary.

Unfortunately for her, prior case law disagrees. (“In the absence of a legislative decree, courts
may adopt and apply public policy principles …”) The Sixth Circuit also notes that the Rules of Professionalism are not created only for the benefit of lawyers - they are also meant to protect their clients, a.k.a. the public.

As for her fraud claims, despite her attempts to toll the statute of limitations by written agreements with Santana, the court essentially ruled that she should’ve known better than to trust a lawyer. After all, they did enter into unethical fee agreements and he took away part of her first fee due to “expenses.” She should’ve been suspicious and investigated in the mid-1990s when the cases originally settled.

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