Too much talk

A Fairfax circuit judge bounced a Maryland lawyer from a Virginia legal malpractice case last month for alleged bad behavior at a series of “contentious and hostile” depositions.

In effect, the lawyer was thrown off the case for talking too much.

Fairfax Circuit Judge Jane Marum Roush found the lawyer had violated an order barring “speaking objections” during depositions. The decision brought a temporary halt to a tangled series of legal battles arising from a Virginia lawyer’s 1998 child abuse conviction.

In a Feb. 25 hearing, Roush revoked the pro hac vice status of David G. Whitworth of Crofton, Md., for interjecting comments during depositions despite the judge’s August order limiting objections.
The Maryland lawyer was appearing in Virginia “pro hac vice,” meaning he could litigate this particular case in Virginia court, after obtaining the permission of the court.

Whitworth had been lead counsel for Bruce W. McLaughlin, a Loudoun County lawyer who is waging war with his former attorneys in the fallout from a disputed child abuse investigation that sidetracked McLaughlin’s career and his life.

A 1998 conviction on charges of molesting his own children led to more than four years in prison and suspension of McLaughlin’s law license. In a redemption saga worthy of Hollywood, McLaughlin, 58, cleared his name, expunged the conviction and regained his law license.

The road back for McLaughlin has been pocked with legal obstacles. McLaughlin sued his criminal lawyers and ultimately settled with one firm. When that settlement was held to bar his claim against another firm, McLaughlin hired Whitworth and sued the lawyers that handled the settlement.
Now, that suit has been withdrawn in the wake of Roush’s banishment of Whitworth from her court, but the litigation may be revived with a different player.

Given McLaughlin’s history, it’s no simple case.

Pursuing a legal malpractice claim twice removed from the original action, McLaughlin had multiple burdens of proof. The parties agreed he had to show that he was actually innocent of the criminal charges and that he would have prevailed in the underlying legal malpractice case but for malpractice by his second set of attorneys, according to a motion filed by the defense.

The defendants were Fairfax lawyer Brian C. Shevlin and his firm, known as Shevlin Smith. Shevlin had represented McLaughlin in the ill-fated effort to recover from his criminal defense lawyers. Shevlin and his firm were represented by Arlington lawyers Joseph F. Cunningham and Michael Graziano.

After a round of depositions last summer, Shevlin’s lawyers moved for sanctions against McLaughlin based on Whitworth’s “abusive tactics to prevent the witnesses from giving true and accurate testimony.”

Whitworth made 86 objections in one deposition, stormed out of another deposition in the middle of a question, and instructed a third-party witness not to answer a question, according to the defense motion.

Shevlin’s lawyers asked Roush to bar testimony from two of McLaughlin’s sons and to permit the use of their testimony from McLaughlin’s 1998 criminal trial.

Whitworth responded that he was only trying to protect his client’s sons from questions akin to “mean-spirited cross examination” intended to intimidate the witnesses.

Roush directed the depositions be retaken at McLaughlin’s expense. In a written order, the judge also forbade any “speaking objections” and threatened to revoke Whitworth’s pro hac vice admission for any further problems.

“Speaking objections” are lengthy objections which tend to suggest a witness’s answer or to inhibit a witness from answering, rather than merely noting the lawyer’s disagreement with the form of the question. Speaking objections are not expressly barred by the rules, but have been held improper in various Virginia circuit court rulings.

Whitworth ran afoul of Roush’s order as he defended McLaughlin’s deposition, according to a second motion for sanctions filed by the defense. Cunningham and Graziano – lawyers for Shevlin – also claimed Whitworth interrupted the answer of a former prosecutor to the point that the witness simply stopped talking and never answered the question.

McLaughlin’s local counsel admitted the depositions had been “contentious and hostile,” but Whitworth defended the second sanctions motion with an “unclean hands” argument, saying Cunningham had misbehaved as well in his questioning. “[T]hings have gotten out of hand, but they’ve gotten out of hand on both sides,” a McLaughlin lawyer told the judge.

Roush wasn’t buying the defense. “I think there’s a difference between someone who is questioning the deponent, coaxing the deponent, and maybe even goading the deponent to be more forthcoming, and the person who is defending the deposition making speaking objections, and interfering with the person who is taking the depositions….,” Roush said, according to a transcript.

“I entered an order in August saying no speaking objections, for example, and the depositions after that were replete with speaking objections…,” Roush said.

Announcing she would revoke Whitworth’s pro hac vice status in the case, Roush said, “[W]hen you are admitted to the Court to practice pro hac vice you are, in effect, a guest of the Court, and you’re expected to comply with all of the Court’s orders, and I think that there have been some serious violations of my August 6 order in terms of speaking objections…”

Because three other attorneys had entered appearances for McLaughlin in the case, Roush said she thought the prejudice to McLaughlin would be slight.

McLaughlin may have felt otherwise. After a motion for reconsideration was denied, he moved for a nonsuit. The case was voluntarily dismissed as of March 4. Under Virginia law, McLaughlin has six months to refile his suit.

“I have advised the client to refile and to obtain new counsel to do so,” Whitworth said. “I expect that to occur.”

Whitworth declined to discuss why the discovery process had been so contentious, but he pointed out that he and Cunningham have a long history of working together and on opposite sides of litigation in both Virginia and Maryland. McLaughlin said it has to do with a dispute over the original allegations of abuse. “My ex-wife still suffers under the delusion that I have abused my children,” he said.

McLaughlin has endured a bumpy ride in his return to law practice and attempt to recover damages after his 1998 conviction and imposition of a 13-year sentence. While behind bars, he was assaulted by other inmates. At one point, he attempted an escape.

Circuit Judge Donald H. Kent granted a habeas petition in 2002 and ordered a new trial. Kent found McLaughlin’s defense attorneys had failed to gather information that could have undermined the testimony of the alleged victims.

At a new trial, McLaughlin argued his ex-wife had managed to falsely convince his children that abuse had occurred. McLaughlin was acquitted, aided by testimony from an expert on the suggestibility of children.

McLaughlin then sued his criminal defense lawyers. When one firm butted heads with its insurance company over coverage, McLaughlin – then represented by Shevlin – settled for $50,000, expressly reserving the right to pursue his claim against the other firm.

It was not to be. Roush ruled the second claim was barred by recovery from the first firm, relying on a Supreme Court of Virginia case decided four months after the initial settlement. With Roush’s decision affirmed by the Supreme Court in 2007, McLaughlin sought recovery from Shevlin.

In the meantime, McLaughlin regained his law license, persuading the Virginia State Bar disciplinary board that his escape attempt did not suggest impairment of his honesty and character.

McLaughlin, who once taught business leaders how to negotiate million-dollar contracts, now has a solo general practice in Leesburg. He remains a lieutenant colonel in the U.S. Army Reserve. He has sued a total of 10 defendants in six cases seeking to recover for his incarceration, according to Graziano.

“At the time of the nonsuit, we were prepared to refute McLaughlin’s claims that he was actually innocent of the original charges and that his various attorneys breached the standard of care,” Graziano said.

McLaughlin, who has joint custody of his children, said he plans to forge ahead with his claim against Shevlin, although he does not have a new lawyer yet. “I am asking for my day in court,” he said. “Maybe, eventually, that day will come.”