Almost a decade after Frederick Henry was shot by a deputy sheriff in Maryland and sued for damages, Henry is back in court, this time facing off against his former attorney.
Yesterday, Henry filed a complaint in U.S. District Court for the District of Columbia accusing Washington-based solo practitioner Eric May of wrongfully trying to collect $95,005 in attorney fees. Henry said May represented him on a contingency fee basis and then withdrew after losing on summary judgment. Years later, Henry claimed, May came back for fees after Henry—represented by other lawyers—won on appeal and settled.
May, in a phone interview this morning, maintained he was justified in seeking fees because of how much work he did on Henry’s case. May handled the first four and a half years of litigation, which included two trips to the U.S. Court of Appeals for the Fourth Circuit, and estimated he spent several hundred hours on the case. "I believe I am entitled to the fees," he said.
Henry is being represented pro bono by Covington & Burling. Covington associate Matthew Berns said today the firm wanted "to ensure that [Henry] receives his full recovery."
According to court documents, a deputy sheriff in Somerset County, Md., shot Henry from behind during an altercation in October 2003. The officer said he thought he was pulling his Taser, not his gun, on the unarmed Henry. Henry sued the officer in the U.S. District Court for the District of Maryland in March 2004. He was represented at the time by May.
Between the time the case was filed and when May withdrew in 2008, the officer twice unsuccessfully filed motions for summary judgment. He appealed to the Fourth Circuit in both instances, with limited success. In June 2008, however, the trial judge granted the officer's third motion for summary judgment. The judge found the officer's belief he was firing his Taser reasonable because his training had been "quite minimal."
Henry, still represented by May, filed a notice of appeal, but less than two months later May asked the court for permission to withdraw as Henry's lawyer, saying the two differed "on the action to be taken in this case." Henry, in the complaint he filed yesterday, claimed May told him he didn’t think Henry would win on appeal.
The appellate litigation clinic at Georgetown University Law Center took over Henry's case. In July 2011, a full sitting of the Fourth Circuit ruled in a 9-3 decision to reverse the trial judge's ruling granting summary judgment to the officer and sent the case back. Georgetown referred the case to Covington, Berns said.
According to the complaint, May sent a letter in January 2012 notifying the officer's lawyer that he would be seeking $95,005 in fees. Henry, now represented by Covington, entered into settlement talks with the officer in April 2012 and reached an agreement. The next day, May notified the officer's lawyer he was asserting a lien for the $95,005 in fees.
Henry argued May has no claim to any fees. "[H]aving voluntarily terminated his representation of Mr. Henry and having played no role in achieving the settlement of Mr. Henry’s claim, Eric M. May is not entitled to any contingency fee payment or any other payment related to the unsuccessful work he performed," he said in his complaint.
The case has not been assigned to a judge.