Can an attorney be awarded attorney's fees for enforcing a confessed judgment note against a client?
An attorney who files a confessed judgment complaint against his or her former client to collect money owed is never entitled to an award of attorney’s fees.
A promissory note with a confessed judgment provision (hereinafter referred to as a “confessed judgment note") is a powerful tool to secure payment and, in the event of default, to obtain an expeditious judgment for the balance owed. Confessed judgment notes are commonly used by attorneys to collect outstanding fees owed by clients.
An attorney fee based upon a fixed percentage of a debt in a confessed judgment note is unenforceable. Monmouth Meadows Homeowners Association, Inc. v. Hamilton 416 Md. 325, fn.14 (2010) (“Our holding that where an attorney is entitled to reasonable fees under the terms of a contract, that attorney is not permitted to define that amount by use of a percentage of a judgment"). This is also true for a confessed judgment note. Meyer v. Gyro Transport Systems, Inc. 263 Md. 518, 531 (1971) (“When the provision to confess judgment provides only for a reasonable attorney’s fee, the reasonable amount of the fee must be determined by the court and counsel may not, himself, use a percentage to determine the amount of the attorney’s fee").
Even if the subject confessed judgment note provided for reasonable attorneys (as opposed to a fixed percentage), an attorney who represent herself in enforcing such a promissory note is not entitled to any attorney’s fees, because no such fees had been incurred:
[I]t seems implicit in the provisions of the note that the 15% commission shall be payable only to an attorney employed in the case or to the plaintiff in reimbursement for his expense in employing such an attorney, and that plaintiff is not entitled to collect such additional compensation when he acts in proper person.
Weiner v. Swales 217 Md. 123, 125 (1958). More recently, the same result was reached in Greenbriar Condominium, Phase I, Council of Unit Owners, Inc. v. Brooks 159 Md.App. 275, 318, cert. denied Greenbriar v. Brooks 384 Md. 581 (2005) (holding “there is nothing in the contract language to suggest that parties representing themselves are entitled to recovery attorney’s fees that they have not incurred").
Nor is a pro se attorney entitled to an award of attorney’s fees under Maryland Rule 1-341 for litigating a confessed judgment action, because a “A lawyer who represents himself or herself has not incurred legal fees". Frison v. Mathis188 Md.App. 97, 109 (2009)