Virginia Lawyers Weekly

A federal judge in Richmond has dismissed a lawsuit filed by an attorney who contended he was defamed by an allegation that he blew a deadline in the appeal of an $8.3 million judgment.

The federal case is one of four actions stemming from a dispute over who was responsible for filing the trial transcripts in the case of a young woman who suffered a severe brain injury in a skiing accident at the Wintergreen resort in Nelson County.

Christopher C. Spencer, a partner in Bowman and Brooke LLP at the time, tried the case before an Albemarle County Circuit Court jury.

Subsidiaries of American International Group Inc. insured the resort and retained E. Duncan Getchell Jr. and his firm, McGuireWoods LLP, to observe the trial and take over on appeal in case of an adverse verdict.

Spencer asserts that a meeting occurred in September 2004 after a hearing on post-trial motions at which he insisted that one firm should be entirely responsible for handling the appeal to avoid the possibility of a missed deadline. Getchell agreed and took full responsibility for the appeal, Spencer alleges.

McGuireWoods, on the other hand, contends that Spencer had the original copy of the trial transcript and ultimately filed it, albeit much too late. The Supreme Court of Virginia refused to hear the appeal because of the late filing of the transcript. The name of Spencer and his firm remained on all appellate pleadings.

The insurers and the resort filed a legal malpractice action against Spencer and his firm, but not McGuireWoods, in July 2007 and waited almost a year to serve it. Before doing so, they amended the complaint in July to add McGuireWoods as a defendant.

The blown appeal and the lawsuit became a political issue after President George W. Bush nominated Getchell in September 2007 for a vacancy on the 4th U.S. Circuit Court of Appeals.

A reporter for The Virginian-Pilot learned of the blown appeal and asked the White House and Getchell for comment. Getchell made no direct response, but the White House told the reporter that it stood by its support of Getchell and referred him to the legal malpractice suit against Spencer.

The reporter also talked to Washington attorney Patrick M. Regan, who told him that he might add Getchell and McGuireWoods as defendants once he learned more about the case through discovery.

Spencer filed a defamation lawsuit in Richmond Circuit Court in November 2007 against Getchell and William Allcott, a McGuireWoods attorney who is executive vice president and director of strategic communications at McGuireWoods Consulting LLC, the firm’s lobbying and public relations arm.

Spencer alleges that Allcott communicated with the White House on Getchell’s behalf and was therefore responsible for its response that the lawsuit was accurate when Allcott and Getchell knew it falsely accused him of being responsible for the blown deadline.

In September 2008, Spencer filed a defamation suit in Richmond Circuit Court against the law firm and John S. Barr, the McGuireWoods attorney who is general counsel to the firm, and the federal action against the AIG subsidiaries and Regan.

Norman K. Moon, a judge in the Western District of Virginia, was designated to hear the federal case, and last week he agreed with the defendants that Spencer had failed to state a case against them.

The lawsuit could not be the basis of a defamation case because it is protected by the absolute litigation privilege, Moon wrote in Spencer v. American International Group (VLW 009-3-019).

Although the privilege only applies to the complaint itself, Regan’s comments to The Virginian-Pilot reporter about it were true, whatever the underlying motives for not including Getchell and McGuireWoods in it might have been, Moon said.

“A reasonable reader of such a statement would infer that Regan lacked sufficient evidence at that time to support a viable malpractice claim against Getchell and McGuireWoods – not that Plaintiff and B&B were entirely responsible for the dismissal of the appeal,” Moon concluded.

The legal malpractice and defamation actions in state court appear to be proceeding to trial. Trial of the malpractice case is set for April, and the two defamation cases have been consolidated for purposes of discovery. Allison S. Rohrer, a Los Angeles attorney who represents Spencer, said, “We respectfully disagree with the order, and we’ll be pursuing an appeal.”

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