Virginia Lawyers Weekly VA Lawyers Weekly
Although defense lawyers showed poor judgment in continuing to represent multiple defendants in this suit alleging medical malpractice and excessive force in the death of a disabled surgical patient at MCV Hospital, a Richmond U.S. District Court says their conduct was not vexatious and did not multiply the proceeds, after their disqualification for a conflict of interest, to warrant an award of attorney’s fees to plaintiff under 28 U.S.C. § 1927.
Using a “recklessness” standard as the point of departure, plaintiffs allege that defense counsel knowingly disregarded the risk, or inexcusably underestimated or ignored the risk, that its multiple-client representation would lead to disqualification. Basically, plaintiffs contend that, if counsel had recognized their ethical duties and had withdrawn from the multiple representations, the case would be ready for trial, instead of in its current posture: a case that, after extensive discovery, is not ready for trial and in which more discovery must be conducted to provide adequate defenses to some of disqualified counsels’ clients.
However, in this case, the court cannot say defendants displayed even a reckless disregard of their ethical duties. First, the notice that defense attorneys had of their conflicts was not as clear as plaintiffs portray it to be. Original counsel for the VCU police department defendants avers that he was never made aware o the court’s admonition at the initial pretrial conference, and the attorney from the Virginia Attorney General’s office who attended that meeting on behalf of the VCUPD defendants states she does not recall the conflict discussion involved her clients. Further, the MCV defendants’ counsel alleged he thought the conflict mentioned at that conference was limited to a single issue respecting his clients which, in his view, was subsequently resolved.
Second, although the conflicts were quite real and were present from the outset of the representation, the record does not show that proceeding with the joint representation, even in the fact of conflicts, was either harassing or annoying in any way. Counsel exercised poor judgment in accepting and continuing representation of multiple clients because their interests rather clearly conflicted and that was reasonably knowable from the outset of the case. In any event, it certainly became obvious as discovery disclosed the conflicts. But the exercise of poor judgment is not per se vexatious within the meaning of § 1927. Although the record shows that both counsel erred in accepting and continuing with multiple representation, the most that can be said from this record is that they acted negligently in so doing, not that they acted recklessly or with wanton disregard for the consequences of their decisions.
After counsel were alerted to the potential conflicts, they sought consents from their clients, as VPRC Rule 1.7 allows them to do. That effort to proceed within the rules, albeit ineffective, cuts against a finding that counsel acted vexatiously.
Although § 1927 does not necessarily require bad faith intent, the attorneys’ conduct in this case was not vexatious.
Sanford v. Commonwealth (Payne, J.) No. 3:08cv835, Feb. 23, 2010; USDC at Richmond, Va. VLW 010-3-096, 27 pp.
