Friday, February 17, 2017

Losing Strategy Does Not Establish Ethics Violation

An Ad Hoc District of Columbia Hearing Committee proposes a 45-day suspension with automatic reinstatement for an attorney's alleged mishandling of a wrongful death case in Virginia federal court.

The underlying case involved the murder of the client's son by another patient in a state hospital where he was being held. The perpetrator had a known propensity for violence and animosity for the victim.

There is no disagreement about the requirement that a member of the hospital staff sit in a chair -- the “yellow chair” -- which had a view of the hall on which their rooms were located and to watch the hallway. The “yellow chair” assignment appears to be an additional safeguard beyond the normal hospital rules which required the staff to check on patients every fifteen minutes during the evening to assure that they were in their beds and breathing normally.

Closed circuit video of the hallway showed that between 9:39 and 9:56 on the evening of February 27, 2010, Mr. Phillips visited Mr. Davis’ room twice. 

The Forensic Mental Health Technician (“FMHT”), who was assigned the task of sitting in the yellow chair from 9:30 to 10:30 pm on February 27, was not in the chair during that period. She was in the dayroom watching television with the charge nurse. They were aware that Mr. Phillips was not in his room as he came to the day room to request lotion. 

The client went through a number of lawyers before finding Mr. Lattimer, who filed the complaint against the hospital and others just before the statute of limitation expired.

In the suit, summary judgment was granted to an individual defendant. Leave to add defendants was denied. 

During that [summary judgment] hearing, the Court noted that “I think you should have sued the lady who was supposed to sit in the yellow chair. That is the person whose error or whose inattentiveness led to the death in this case. And if you had sued her, you would have had a slam dunk. And I think the state probably has insurance to cover that. At least they did when I was in the Attorney General’s office.” However, in its Rule 26(a) disclosures, the Commonwealth had answered “N/A” to the question whether there was any insurance agreement available for inspection and copying. 

In the losing appeal to the United States Court of Appeals for the Fourth Circuit

In her opinion for the Court, Judge Thacker noted Respondent’s statements concerning Dr. Davis and his misstatement as to when the Complaint was filed. On May 2, 2014, Judge Thacker referred the matter to Disciplinary Counsel, saying “I forward it for your consideration inasmuch as I question Mr. Lattimer’s handling of the case as well as his candor to the court.” Respondent never sent Ms. Wilkins a copy of the Court of Appeals decision. 

On choice of law

Since this disciplinary matter arose in connection with a case litigated in the Eastern District of Virginia, where Respondent was admitted pro hac vice, Rule 8.5 of the District Rules requires that his professional conduct comport with the Virginia Rules. Cf. In re Gonzalez, 773 A.2d 1026, 1029 (D.C. 2001). While the differences between the Virginia and the District of Columbia Rules appear to be minor, the Committee will rely on the Virginia Rules and precedent in reaching its recommendations, except where we were unable to find relevant precedent. In those situations, the Committee will look to the decisions of the District of Columbia Court of Appeals.

The committee notes and discusses at length Disciplinary Counsel's view (supported by an expert) that the attorney had demonstrated a lack of competence in pursuing a losing litigation strategy

In [expert witness] Mr. Fogel’s view, [prior counsel] Mr. Marcari’s analysis of the potential causes of action was correct. Respondent should have sued the hospital in state court under the Virginia Tort Claims Act action against the Commonwealth, with damages capped at $100,000. He thought that was a straightforward case. In addition, Respondent should have sued the state employees for gross negligence in either state or federal court and brought an action in federal court under 42 U.S.C. § 1983 for willful indifference to Mr. Davis’s safety.

...the Committee is not in a position to resolve the legal issue concerning the scope of the exception to the Virginia Tort Claims Act on which Respondent relied. In order to prove a violation of Virginia Rules 1.1 and 1.3(a), it was Disciplinary Counsel’s burden to establish by clear and convincing evidence that Respondent’s decision not to proceed based on his reading of Baumgardner and Patten was inconsistent with the reasonable exercise of professional judgment. Disciplinary Counsel failed to do so.

The committee found a lack of diligence but not a violation of the duty to communicate

Rule 1.4 does not require “an attorney … [to] communicate with a client as often as the client would like, as long as the attorney’s conduct was reasonable under the circumstances” and as long as “‘he [keeps] the client adequately informed of the progress’” of the case. In re Schoeneman, 777 A.2d 259, 262 (D.C. 2001) (quoting In re Walker, 647 P.2d 468, 470 (Or. 1982) (en banc)). While he Committee finds Respondent’s practice of not providing clients with filings unless they ask to be problematic, it concludes that, under the terms of his retainer agreement and Virginia Rule 1.4, Disciplinary Counsel has not shown by clear and convincing evidence that Respondent failed to keep Ms. Wilkins reasonably informed as to the status of her case.

And rejected dishonesty charges based on the alleged misstatement in oral argument before the Fourth Circuit

The Committee finds that Disciplinary Counsel has not shown the required mens rea by clear and convincing evidence. As was the case with the materiality requirement under Rule 3.3(a), Respondent had nothing to gain by saying that he filed the Complaint one month earlier than he did. In reaching this conclusion, we are aware, as Disciplinary Counsel notes, that Judge Thacker found the point significant. The Committee is sensitive to concerns raised by a court about an attorney’s ethical conduct and has treated her comments seriously. But, Disciplinary Counsel has not introduced any evidence or otherwise explained why the misstatement was material or significant, and the Committee cannot think of one. Accordingly, we conclude that Respondent’s misstatement was just that; no rule violation has been established.

But another statement was false

Disciplinary Counsel’s claim that Respondent violated Virginia Rules 3.3(a) and 8.4(c) in arguing that Dr. Davis had an office and practiced medicine at Central State when the Complaint was filed is well taken. Respondent knew, or should have known, that based on Dr. Davis’ deposition, he no longer maintained an office at Central State after May 2010. 

On sanction

Disciplinary Counsel faults Respondent for what Disciplinary Counsel calls his “full-throat denial of any misconduct whatsoever, in the face of the district court’s statement that he lost a ‘slam dunk’ case because he sued the wrong party and despite his obvious failure to produce expert disclosures on time.” What Disciplinary Counsel has ignored, however, is that Respondent is a defendant in a malpractice case brought by Ms. Wilkins. Any acknowledgement by him that he erred will unquestionably become a major piece of evidence in that case. In light of these facts, the Committee finds Disciplinary Counsel’s argument on this factor unreasonable. The Committee cannot give Respondent credit for recognizing that he may have made a mistake, but it will not count his unwillingness to admit error as a negative factor either.

Should an unwillingness to concede error in a bar discipline case be discounted due to potential collateral civil consequences?

Interesting question.


Respondent should have been more diligent, but the Committee finds he earnestly sought to reach the results Ms. Wilkins wanted.

On the other hand, the Committee finds that Respondent’s conduct in connection with the hearing is an aggravating factor. Disciplinary Counsel subpoenaed his records in Ms. Wilkins’ case, yet Respondent did not produce the full file, as the additional emails which he introduced during the hearing and in his Surreply establish. In addition, he ignored Board rules in filing the Surreply and in filing his “Response to Disciplinary Counsel’s Opposition to Respondent’s Surreply Brief” without seeking leave to file. His failure to follow the Board rules is a concern and reflects adversely on Respondent.

Without a fitness requirement

the Committee does not believe Disciplinary Counsel has shown that Respondent’s misconduct in this case raises serious questions as to his fitness to practice law. Respondent’s misconduct occurred in a single case; it was a difficult case and he was dealing with a difficult client. While his decisions have proven to have been ill-advised, Disciplinary Counsel has not shown that they were unreasoned or beyond the discretion accorded lawyers in making strategy decisions. He should have done more homework before launching on his perilous flight, but that does not mean that his theory of the case establishes that he lacks the capacity to practice law. Indeed, the record here indicates that there was substantial preliminary evidence to support his theory. His problem is that he did not conduct a sufficient fact inquiry before filing the Complaint and waited too long to file it.

Disciplinary Counsel had sought a 90-day suspension with fitness.

The case is In re Gregory Lattimer and can be accessed at this link. Citations to the record in the quoted excerpts have been omitted . (Mike Frisch)

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