TAKING THE FIGHT TO THE PLAINTIFFS: LITIGATION AS RACKETEERING IADC 2014 Annual Meeting Vienna, Austria

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1 TAKING THE FIGHT TO THE PLAINTIFFS: LITIGATION AS RACKETEERING IADC 2014 Annual Meeting Vienna, Austria Samuel L. Tarry, Jr. McGuireWoods LLP 901 East Cary Street Richmond VA Marc E. Williams Nelson Mullins 949 Third Ave., Suite 200 Huntington, WV I. INTRODUCTION On December 20, 2012, a federal jury in the Northern District of West Virginia at Wheeling returned verdicts in favor of plaintiff CSX Transportation, Inc. against Pittsburg asbestos lawyers Robert Peirce, Jr. and Louis A. Raimond for common law fraud, conspiracy and violations of civil RICO in connection with the filing of asbestos lawsuits in West Virginia state court. The jury also found the lawyers' former expert witness, Dr. Ray Harron, liable as a co-conspirator. The evidence at trial demonstrated that the lawyer defendants hired Harron because of his willingness to classify x-rays as being "consistent with asbestosis" as opposed to the numerous other types of pneumoconiosis (1) at an extremely high rate (2) which they regularly tracked (3) that was at least 3-4 times higher than any other doctor they had previously used. Harron knew the lawyer defendants were obtaining his B reads in connection with potential "claims" and that anything less than a 1/0 B read score would not support a claim. Expert testimony showed Harron's B reads of the claimants at issue were "scientifically not credible;" "disingenuous and scientifically dishonest;" "invalid and scientifically wrong;" not explainable as an "honest mistake" or by "lack of competence and skill;" and, the product of a "purposeful... systemic pattern of over-reading that does not match the scientific literature." No treating physician had diagnosed any of the claimants at issue as having an asbestosrelated disease before the lawyer defendants filed their claims against CSXT, nor was any evidence introduced at trial that any of them did, in fact, have an asbestos related disease at that time (or any other). The lawyer defendants knew that some, if not all, of the claimants lacked meaningful occupational exposure to asbestos and, in some instances, overtly falsified their exposure histories. Importantly, the lawyer defendants admitted they did not know

2 whether certain allegations contained in the underlying complaints concerning the claimants at issue were true or even supported by a good faith evidentiary basis. This is believed to be the first civil verdict in history to find lawyers in violation of federal racketeering laws for the filing of fraudulent lawsuits, and the first to find a practicing physician to be a RICO conspirator for providing lawyers with knowingly unreasonable medical opinions. Judge Frederick Stamp denied the defendants motions for new trial in September of See CSX Transp., Inc. v. Gilkison, No. 5:05CV202, 2013 U.S. Dist. LEXIS 5282 (N.D. W. Va., Jan. 14, 2013). The case is currently being briefed at the Fourth Circuit. Over the five-year life of this litigation, the court and the parties had to confront a number of legal and ethical questions related to the very nature of mass tort litigation. At the core of this case, and the court's rulings, are important questions about bedrock principles governing the obligations lawyers owe to their clients and our civil justice system. II. FRAUD ON THE COURT VS. FRAUD ON PRIVATE PARTIES VIA COURT PROCEEDINGS CSXT's theory of liability against the two lawyers and Dr. Harron was straightforward - that the defendants collectively manufactured factual and medical evidence through knowingly unreliable means in order to produce asbestosis lawsuits bereft of merit. CSXT selected 11 cases as examples. Importantly, CSXT alleged that although the company disputed the allegations in the complaints, they reasonably relied upon the lawyer's representations that the lawyers possessed a good faith basis for making those allegations when they filed their complaints. In simple terms, CSXT's lawsuit acknowledged the importance of the adversarial system - where parties argue over facts and litigate disputed diagnoses through good faith "battles of the experts" - but took issue with situations where lawyers and their experts rig the evidence to create only the fraudulent appearance of a legitimate case in controversy. A. Rule 11-A Pledge of Good Faith Rule 11 of the Federal Rules of Civil Procedure provides in pertinent part as follows: (a) Signature. Every pleading... must be signed by at least one attorney of record... (b) Representations to the Court. By presenting to the court a pleading... an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose... (2) the... legal contentions are warranted... 2

3 (3) the factual contentions have evidentiary support or, if specifically so identified, are reasonably based on belief or a lack of information. Fed. R. Civ. P. 11. Violations of Rule 11 may be sanctioned upon motion by a party or on the court's own initiative. Id. The rule's amended wording stresses the need for a pre-filing inquiry that is reasonable under the circumstances. See Kinee v. Abraham Lincoln Fed. Sav. & Loan Ass'n, 365 F. Supp. 975 (E.D.Pa. 1973). Most state courts have some version of Rule 11 with substantially similar responsibilities and remedies. See e.g., W V. R. Civ. P. 11. Accordingly, when a lawyer signs a complaint, he or she not only represents to the court and parties that they possess a good faith basis for the facts alleged (i.e., that a plaintiff has asbestosis), the lawyer also vouches to having performed reasonable inquiries. If a lawyer knows his or her inquiries to have been unreasonable, and instead deliberately intended to produce unreliable information for purposes of leveraging litigation settlements, then the signing and filing of the legal complaint may itself constitute fraud on the adverse party. See CSX Transp. v. Gilkison et al., no. 5:05-CV-202, 2012 U.S.Dist. LEXIS *27-30 (N. D. W. Va. May 3, 2012). B. Common Law Fraud and Conspiracy In most states, common law fraud consists of the following elements: (1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false, and that plaintiff justifiably relied upon it; and (3) that the plaintiff was damaged because he relied upon it. See e.g., Poling v. Pre-Paid Legal Servs., Inc., 212 W.VA. 589, 575 S.E.2d 199, 202 (W.Va. 2002). In federal court proceedings, a party alleging fraud must "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). Fraud must be proved by clear and convincing evidence. See, e.g., White v. National Steel Corp., 938 F2d. 474, 490 (4th Cir. 1991). In West Virginia, "[a] civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal doctrine under which liability for a tort may be imposed on people who did not actually commit a tort themselves but who shared a common plan for its commission with the actual perpetrator(s)." Dunn v. Rockwell, 225 W.Va. 43, 57, 689 S.E.2d 255, 269 (W.Va. 2009) (citing Kessel v. Leavitt, 204 W.Va. 95, 129, 511 S.E.2d 720,754 (W.Va. 1998)). In asbestos litigation, lawyers may open themselves to allegations of fraud by alleging exposure to asbestos-containing products without possessing a good faith basis to believe that such exposure may have occurred. See CSX Transp., Inc. v. Gilkison, 406 F. App'x 723, 734 (4th Cir. 2010) ("a jury could find that the lawyer defendants committed fraud by filing the lawsuit because there was no evidence upon which they could have believed that Baylor was exposed to asbestos-containing products in the course of his employment with CSX."). And even where a lawyer may possess general knowledge of an industry, which raises the possibility of historical exposures, this does not allow the lawyer or his agents to forge 3

4 documents or create false written histories of exposure for purposes of inducing settlement. CSX Transp., Inc. v. Gilkison, et al., no. 5:05-cv-202, 2012 U.S. Dist. LEXIS *14-15 (N. D. W. Va. Nov. 26, 2012) ( While a possibility of exposure may certainly have existed, this does not stand for the proposition that the defendants did not still falsify the documents to show such an exposure, which CSX then relied upon to its detriment."). With regard to medical evidence, the safest route for any lawyer is to rely on the medical opinions of doctors treating the patient in the normal course. When a lawyer undertakes to create the conditions and circumstances for either a formal diagnosis or an expert opinion that a client's condition is "consistent with" a diagnosis, the lawyer assumes some degree of responsibility for ensuring that the process is reasonable and the product of good faith. See Id. ("CSX contends, and this Court agrees, that there are triable issues of fact regarding whether Baylor's claim was based on fabricated medical evidence."). Medical experts who knowingly agree to assist in the process of generating fraudulent lawsuits may find liability as conspirators. C. RICO To state a civil RICO h claim, a plaintiff must allege that the defendants engaged in, or conspired to engage in, a "pattern of racketeering activity." US Airline Pilots Ass'n v. Awappa, LLC, 615 F 3d 312, 317(4th Cir. 2010). A pattern requires at least two predicate acts of racketeering activity. 18 U.S.C. 1961(5). To recover damages, a plaintiff must also prove that he was injured "by reason of" the pattern of racketeering activity. See CSX Transp., Inc. v. Gilkison, et al., no.5:05-cv-202, 2012 U.S. Dist. LEXIS *47-48 (N. D. W. Va. May 3, 2012) (citing 18 U.S.C. 1964(c)). In its amended complaint, CSXT alleged with specificity numerous "instances of mail and wire fraud, which include the filing and service of mass lawsuits, as well as all of the actions taken by the lawyer defendants to generate medical evidence in support of the fraudulent claims." I d. at 31. CSXT's third amended complaint survived Rule 12 analysis by sufficiently asserting a pattern of racketeering that involved "the same or similar purposes, results, participants, victims" and methods. See CSX Transp., Inc. v. Gilkison, et al., no. 5:05-cv-202, U.S. Dist. LEXIS *41-42 (N. D. W. Va. May 3, 2012) (quoting H.J. Inc. v. New Bell Tel. Co., 492 U.S.229, 230 (1989)). To wit, CSXT pled and later produced evidence that the lawyer defendants deliberately filed mass claims to overburden the courts, and that each fraudulent claim was the product of the lawyer defendants' "deliberately unreliable mass screenings and was based, in whole or in part, on an x-ray taken by the same radiologic technologist (Corbitt) and interpreted by the same doctor (Harron)." Id. at CSXT's allegations included acts that were both related and continuous and "exceed the scope of unlawful activity found in customary fraud cases." Id. at 47. These acts caused proximate injury to CSXT, enabling recovery of damages under RICO. Id. at 48 ("The third amended complaint describes a direct relationship between the lawyer defendants' filing and prosecution of fraudulent claims and CSXT's need to expend resources in response to those claims."). Although the district court initially dismissed the majority of CSX s claims as time-barred, the 4

5 Fourth Circuit Court of Appeals rejected the district court's finding that RICO's four-year statute of limitations ran from the dates the Peirce Firm's complaints were filed against CSXT. CSX Transp., Inc. v. Gilkison, et al., no , 406 Fed Appx. 723; 2010 U.S. App. LEXIS *12-13 (N. D. W. Va. Oct. 26, 2010) ("nothing 'clearly appears' on the face of the complaint to show that the filing of these suits by the lawyer defendants, as well as settlements, establish that CSX knew or ought to have known by July 2003 that the alleged fraud was afoot."). In other words, although CSXT may have disputed the allegations in the underlying filings, they were still at that time entitled to rely on the promise of the complaint itself - that the lawyer defendants conducted a reasonable pre-filing inquiry and possessed a good faith basis for bringing the lawsuits. D. Can "Lawyering" be Fraud? Affirmative Defenses 1. Noerr-Pennington and the right to petition The Noerr-Pennington doctrine "grants First Amendment immunity to those who engage in petitioning activity" including the pursuit of litigation. IGEN Intern., Inc. v. Roche Diagnostics GmBH, 335 F.3d 303, 310 (4th Cir. 2003). While Noerr immunity may extend to a lawyer involved in litigation, that is true only where the lawyer is acting as the agent of a client exercising its First Amendment petitioning rights. See Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 645 (9th Cir. 2009) (holding that "law firms and lawyers... may benefit from [Noerr] immunity" as "agents of' the parties). Moreover, the doctrine does not protect lawyers or parties who file "sham" lawsuits. Prof'l Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 51, 113 S. Ct. 1920, 123 L. Ed., 2d 611 (1993). Courts will define litigation as a sham if the underlying lawsuit was (1) objectively baseless, and (2) subjectively intended to abuse the process. Id. at Pleading that a complaint was a sham, and producing sufficient evidence to support the sham exception, should create a triable issue of fact as to the application of Noerr-Pennington. See CSX Transp., Inc. v. Gilkison, et al., no. 5:05-cv-202, 2012 U.S. Dist. LEXIS * Professional Duties to the Client The lawyer defendants at first raised statutes of limitation as affirmative defenses, arguing CSXT had for several years possessed knowledge sufficient to know that certain asbestos claims were meritless. At trial, they proffered expert witness testimony to support a novel legal defense that once they r e cei ve d Dr. Harron's 1/0 B reads, they were professionally obligated to take action to protect their client's rights and avoid operation of West Virginia's statute of limitations. Of course CSXT argued that the lawyers manufactured unreliable B reads in the first place. How can a subsequent duty to the client erase earlier fraud on that client and others, especially when the duty arose only as a result of the lawyers' fraud? 5

6 III. DISCOVERABILITY OF ATTORNEY-CLIENT COMMUNICATIONS, WORK PRODUCT AND LITIGATION FILES The special facts of CSXT's fraud c a s e w h i c h alleged that the defendant attorneys falsely manufactured asbestosis lawsuits against CSXT - complicated discovery by implicating attorney-client communications and work product. In response to competing motions to compel, the court issued several rulings on the discoverability of materials created or maintained by lawyers and clients in the course of litigation. A. Attorney-Client Privilege and the Work Product Doctrine Attorney-Client Privilege generally protects from disclosure: (1) client communications; (2) with the client's lawyer or lawyer's agent; (3) related to the rendering of legal advice; (4) made with the expectation that the communications will be kept confidential; (5) not in the furtherance of a future crime or tort; (6) provided that the privilege has not been waived. See THOMAS E. SPAHN, A PRACTITIONER'S GUIDE TO THE ATTORNEY CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE 5-6 (2001). Work Product designation protects from discovery those "tangible materials and intangible equivalents prepared, collected, or assembled by a lawyer" or at the lawyer's direction "in anticipation of litigation or for trial," unless there is a "showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." See Id. at (quoting Fed. R. Civ. P. 26(b)(3) and Restatement (Third) of Law Governing Lawyers 87, at 638 (1998). A crime-fraud exception applies to both attorney-client privilege and work product. See Id. at 358; see also, Restatement, supra, 93, at 672 ("Work product immunity does not apply to materials prepared when a client consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or to aid a third person to do so or uses the materials for such a purpose."). Attorney letters to clients that direct them to share the letter with third party medical providers do not exhibit a reasonable expectation of privacy and may be compelled in discovery. CSXT v. Peirce, et al., No. 5:05-cv (N.D. W.Va. June 12, 2012). The same rule should apply to attachments to correspondence - if the attachments are not meant to be kept strictly confidential, there is no attorney client protection. For example, affidavits or form reports given to the client for purposes of obtaining doctor signatures do not constitute attorney-client privilege and provide no meaningful work product protection. See Id. Documents shared with a potential client in advance of establishing the attorney-client relationship are not privileged. The party seeking protection bears the burden of establishing privilege, and thus the existence of the attorney-client relationship. See United States v. (Under Seal), 748 F.2d 871, 876 (4th Cir. 1984). CSXT obtained occupational questionnaire forms filled out by the lawyer defendants' clients during the recruitment process; the court 6

7 having determined that no expectation of privacy existed at the time the documents were created and completed. Here, the Peirce firm has not established that the claimants who completed those questionnaires were clients or sought to become clients at the time the employees filled out the questionnaires. See Morisky v. Pub. Serv. Elec. & Gas Co.,191 F.R.D. 419,423 (D. N.J. 2000). Furthermore, these forms were distributed at mass screening sessions where the Peirce firm was generally soliciting business, and the forms were distributed in a setting open to the public, in plain view, which are not indicia of confidential communications. See Id. Because "[t]he professional relationship for the purpose of the attorney-client communications hinges upon the client's belief that he is consulting a lawyer in that capacity," and the Peirce firm has not shown that the claimants were consulting the Peirce Firm attorneys in that capacity, the documents cannot be protected by the attorney-client privilege. Id. at 424 (internal citations omitted). As for the Peirce Firm's claims of work product protection, the work product doctrine protects the legal theories developed by counsel in preparation for litigation. Hickman v. Taylor, 329 U.S. 495, 511 (1947). Here, the completed questionnaires are just fact statements provided by the claimants at issue. Morisky, 191 F.R.D. at 425. Furthermore, a copy of the questionnaire that was filled in by an individual in another case was already produced to Plaintiff. This indicates that the only part of the form that is arguably work product, the form itself which the attorneys created, has already been disclosed. Accordingly, the questionnaires are no longer entitled to protection under the work product doctrine. Therefore, Defendants must produce the pages related to claimed exposure to asbestos from the screening questionnaires at issue. CSXT v. Peirce, et al., no. 5:05-cv (N.D. W.Va. June 12, 2012). Similarly, letters sent to a client after the attorney-client relationship has terminated do not qualify for privilege. Id. In the Peirce case, the lawyer defendants asserted an on-going attorney-client relationship due, in part, to the nature of third party claims made to various asbestos trusts. The federal magistrate rejected this argument. Here, as Judge Stamp noted, "counsel for the Peirce Firm defendants [is] unable to state whether any of the [claimants at issue] have current third-party claims. Without such evidence, 7

8 this Court cannot find that there is an ongoing attorney-client relationship that would protect the documents as privileged. In addition, while making vague statements that the Firm would continue to represent them in any other claims that could be asserted against asbestos manufacturers, the letters themselves acknowledge that "[the] firm cannot represent you in regard to CSX's claims of fraud against the three lawyers, because the court held that [the firm] would have a conflict of interest." Accordingly, these documents must be produced. CSXT v. Peirce, et al., no. 5:05-cv (N.D. W.Va. June 12, 2012). Conversely, internal law firm logs or databases, which record confidential information related to advising clients during their litigation, are presumptively privileged and work product, even after termination of the relationship. See id. B. Crime Fraud Exception Most, if not all, courts recognize a so-called "crime-fraud" exception to both the attorney-client privilege and work product doctrine. Traditionally, however, application of that exception required a crime or fraud by the client. See, e.g., State ex ref. Allstate Ins. Co. v. Madden, 215 W.Va. 705, 717 (W.Va. 2004) ("The dispositive question is whether the attorney-client communications are part of the client's effort to commit a crime or perpetrate a fraud."). CSXT's claims, in contrast, alleged fraudulent conduct by the lawyers with the clients as mere passive instruments in the alleged fraud. Thus, the court was confronted with the relatively novel question of whether a lawyer's fraud could render otherwise privileged or protected materials discoverable. In holding that a lawyer's wrongdoing could indeed give rise to an exception to both the attorney-client privilege and work product doctrine, the court relied on the Third Circuit's opinion in In re Impounded Case, 879 F.2d 1211, (3d. Cir. 1989), one of the few opinions (and as to the attorney-client privilege, perhaps only opinion) to have previously confronted this question: The Third Circuit addressed a similar issue in In re Impounded Case, 879 F.2d 1211 (3d Cir. N.J. 1989). There, the Third Circuit Court of Appeals relied upon Moody v. Internal Revenue Service, 654 F.2d 795 (D.C. Cir. 1981) to hold that lawyer misconduct may eviscerate both work product protection and the attorneyclient privilege. The Moody court focused solely on the work product privilege. The court held that "at least in some circumstances, a lawyer's unprofessional behavior may vitiate the work product privilege." Id. at 800. Defendant would have this Court believe that Moody is inapplicable here. While this may be true, the Moody court laid the foundation for the court in In re Impounded Case to 8

9 apply the same principles to both the attorney client privilege and the work product doctrine..... The Third Circuit [in In re Impounded Case] rejected the law firm's contention that many of the seized documents were protected by either the attorney-client privilege or the work product doctrine. Judge Seitz put it best when disposing of the firm's argument that the crime-fraud exception to the attorneyclient privilege does not apply to defeat the client's privilege where the pertinent criminality is solely that of the law firm: It is not apparent to us what interest is truly served by permitting an attorney to prevent this type of investigation of his own alleged criminal conduct by asserting an innocent client's privilege with respect to documents tending to show criminal activity by the lawyer. On the contrary, the values implicated, particularly the search for the truth, weigh heavily in favor of denying the privilege in these circumstances. In re Impounded Case, 879 F.2d 1211, (3d Cir. 1989) (citing Moody and other cases). Of course, this case is not in the criminal context. In its civil action, CSX has alleged fraud on the part of the law firm, the lawyer defendants and Dr. Harron. However, this Court believes the same principles laid out so eloquently by Judge Seitz apply here. Simply put, a lawyer or law firm may not engage in fraudulent or criminal activity and then hide behind any privilege to protect the firm's or the individual lawyer's interests. The Court believes that this is exactly what Defendant is attempting to do in this case. CSX Transp., Inc. v. Gilkison, No. 5:05-CV-202, 2009 U.S. Dist. LEXIS 46033, *18-20 (N.D. W.Va. May 29, 2009). C. Implied Waiver When a corporation seeks to recover damages as a result of being forced to defend fraudulent litigation, the company bears the burden of proving reliance - typically "justifiable" or "reasonable" - upon the fraudulent statements. Putting the corporation's reasonable or justifiable reliance at issue creates a risk of implied waiver of certain subjects within the corporate mindset. 9

10 Courts typically employ one of three general tests to determine whether h a litigant has waived the attorney-client privilege. The broadest approach provides that a litigant automatically waives privilege upon assertion of a claim, counterclaim, or affirmative defense that raises as an issue a matter to which otherwise privileged material is relevant. Frontier Ref., Inc. v.gorman-rupp Co., 136 F3d 695, , 701 (10th Cir. 1998). A second approach provides for waiver only when the material to be discovered is both relevant to the issues raised in the case and either vital or necessary to the opposing party's defense of the case. See Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975). The most restrictive approach finds waiver only where the litigant directly puts the attorney's advice at issue in the litigation. See Frontier Ref, supra; see also Clark v. City of Munster, 115 F.RD. 609, 614 (N.D. Ind. 1987)("The filing of a lawsuit does not waive the attorney-client privilege unless the complaint is based upon the privileged communications and places those communications at issue."). In the Peirce case, although CSXT was compelled to produce for inspection the non-privileged portions of more than 10,000 historical litigation files, the court determined that CSXT had not waived attorney client privilege by virtue of alleging fraud in its complaints: Although "at issue" implied waiver of the attorney-client privilege has been defined rather inconsistently by various circuit and district courts, and even though it is true that a party can waive the privilege by putting the advice of an attorney in issue, the Third Circuit in Rhone-Poulenc Rorer v. Home Indemnity Co. succinctly addressed the issue now before this Court. There, the Court held there is no "at issue" implied waiver of the attorneyclient privilege where no party has "interjected the advice of counsel as an essential element of a claim." Rhone-Poulenc Rorer v. Home lndem. Co., 32 F.3d 851 (3d Cir. 1994). Rather, it held that "a party does not lose the privilege to protect attorney client communications from disclosure in discovery when his or her state of mind is put in issue in the action." Id. at 864. Similarly, here, although Plaintiff asserts claims of fraud among others, for relying on representations made by [the Defendants], it has never put advice received by its attorneys at issue, nor has it disclosed any of its attorney client communications. Accordingly, this Court must find that there has been no general "at issue" implied waiver of the attorney-client privilege. CSX Transp. Inc. v. Peirce, et al., Case 5:05-cv-00202, Doc. 993 (March 27, 2012). While this ruling necessitated an extensive privilege review and logging of protected documents, it prevented the wholesale disclosure of documents embodying the company's past litigation strategies. 10

11 D. Are Legal Bills Discoverable? The lawyer defendants sought to discover both the legal bills from CSXT's historical defense of asbestos litigation - going back several years - as well as the bills being generated by outside counsel to prosecute the RICO/fraud case. The former were sought as relevant to allegations and defenses in the fraud case, the latter as a measure and notice of the attorney fees CSXT might claim under RICO. Notwithstanding the presence of attorney mental impressions in some historical billing records, the court found them to be neither attorney-client privileged nor work product and ordered their production. CSXT v. Peirce, et al., no. 5:05-cv (N.D. W.Va. June 12, 2012) ("The purpose of these documents are to collect fees, not provide legal advice...[and] these records were not prepared in anticipation of litigation, rather they were prepared in anticipation of receiving payment for services rendered."). As to the on-going legal bills being accrued in the fraud case, the court deemed the discovery request untimely. CSX Transp., Inc. v. Peirce, et al., no. 5:05-cv-202, 2012 U.S. Dist. LEXIS *9 (N.D. W. Va. Oct. 29, 2012) ("While it is true that CSX is requesting attorneys' fees in this action, the statutes under which CSX is requesting these fees do not require a party to prove these fees at trial, nor has this Court or the magistrate judge found any case law indicating such a requirement."). Fed R. Civ. P. 54(d), which governs costs and fee awards, states that claims must be made "no later than 14 days after the entry of a judgment." Fed R. Civ. P. 54(d)(2)(B). IV. THE LAWYER AS DEFENDANT: IMPACT ON THE ATTORNEY-CLIENT RELATIONSHIP The 11 cases at issue in CSXT's fraud/rico complaint involved railroaders who had both employment relationships with CSXT and attorney-client relationships with the lawyer defendants. Early in the discovery period, the lawyer defendants moved to (1) prohibit CSXT from contacting and interviewing the law firm's former asbestos clients, and (2) allow other attorneys (non-parties) from their law firm to represent their former clients at deposition. A. May Clients Be Interviewed Without Notice to Counsel? In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Model Rules of Prof'l Conduct R. 4.2 (1989);see also W.Va. Rules of Prof'l Conduct R. 4.2 (1989). The purpose of this rule is to prevent a lawyer from making ex parte contact with another party. State ex. Ref. Charleston Area Med. Ctr. V. Zakaib, 190 W.Va. 186, 437 S.E.2d 759, 762 (W.Va. 1993). The court in Peirce determined that CSXT was "free to communicate with [Peirce] clients whose relationship with the Peirce firm has ended." CSX Transp., Inc. v. Gilkison et al., no. 5:05-cv-202, 2011 U.S. Dist. LEXIS *19 (N.D. W. Va. Nov. 9, 2011). Rejecting defendants' arguments of on-going client relationships on possible future claims, the court noted that even if additional asbestos claims were filed "these claims would be separate 11

12 matters from the matter that CSX seeks to discuss in this case, namely the alleged fraud of the Peirce firm." Id. at 21. When contacting the lawyers' former clients, CSXT's counsel were governed by Rule 4.3 (Communication with Unrepresented Persons). Model Rules of Prof l Conduct R. 4.3 (1989). This focus on the meaning of "subject of the representation" also led the court to allow CSXT limited contact with existing Peirce clients. CSX Transp., Inc. v. Gilkison et al., no. 5:05-cv- 202, 2011 U.S. Dist. LEXIS *19 (N.D. W. Va. Nov. 9, 2011) ("In the asbestos-related cases, the "matter to be discussed" was the client's asbestos-related injury. In the current case, the "matter to be discussed: is the alleged fraud.") (citing ABA Comm. Of Ethics & Prof'l Responsibility, Formal Op at 1). B. The Conflict Between The Lawyer Defendants and Their Clients A lawyer is prohibited from representing a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. W.Va. Rules of Prof l Conduct R. 1.7(b). This rule applies to law firms so that when "lawyers are associated in a firm, none of them shall knowingly represent a client when anyone of them practicing alone would be prohibited from doing do by Rules 1.7, 1.8(c), 1.9, or 2.2." CSX Transp., Inc. v. Gilkison et al., no. 5:05-cv-202, 2011 U.S. Dist. LEXIS *23-24 (N.D. W. Va. Nov. 9, 2011) (quoting W.Va. Rules of Prof'/ Conduct R. 1.10). In determining that the Peirce firm had a non-waivable conflict and that its clients needed independent advice and counsel for their depositions in CSX's fraud case, the court noted the dissimilar goals of the lawyer defendants and their clients: Id. at 24. In this case, the Peirce Firm defendants' primary goal is to defend against the allegations of racketeering, fraud, and conspiracy. This goal is inconsistent with the desire to protect their clients' interests in the asbestos-related claims. Thus, at least a risk exists that the Peirce firm defendants may use the representation of their former clients to protect their personal interests, in violation of Rule 1.7(b). V. CONCLUSION The Peirce case illustrates that lawyers and doctors who conspire to commit fraud are not immune from liability simply because their actions were taken in the context of litigation. In fact, where clear evidence of such misconduct can be shown, it may be that such defendants will be - and, indeed, should be - subject to even greater judicial scrutiny specifically 12

13 because their misconduct was undertaken while purportedly representing allegedly injured workers. See, e.g., Gilkison, 2009 U.S. Dist. LEXIS 46033, at *18-20 ("Simply put, a lawyer or law firm may not engage in fraudulent or criminal activity and then hide behind any privilege to protect the firm's or the individual lawyer's interests."). While it is true that lawyers owe their clients a duty to represent them zealously, they also owe a duty to do so truthfully. When that duty is violated, every stakeholder in the judicial system - courts, parties and lawyers alike should take appropriate action to see the violation rectified. The West Virginia jury's verdict in the Peirce case has generated a fair amount of press, and likely some much needed introspection and debate about mass tort practices. Perhaps the verdict may also deter others from similar misconduct. As Mark Twain famously noted, "There are several good protections against temptation, but the surest is cowardice." 13

Ethical and Professional Lessons from CSX Transp. Inc. v. Peirce, et al.

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