Peter Vieth//June 16, 2014
Peter Vieth//June 16, 2014//
The local sheriff’s office can do the job – the $12 fee remains a notable bargain in Virginia.
If the case requires special handling, however, the lawyer might ask a process server or private investigator to make the delivery.
One lawyer who reportedly hired a p.i. to try to catch a cheating husband in the act – and serve him with process at the same time – now is facing a $3.5 million claim for the 2011 death of the investigator at the hands of the husband.
The widow of the process server claims attorney Sherwin J. Jacobs of Harrisonburg failed to warn the investigator that the husband might be dangerous.
The investigator, Greg Brown, was shot three times, once at close range. The husband, his accused killer, is said to be hiding in Iraq.
The case against Jacobs turns on when a lawyer has a duty to alert a private investigator about possible danger from a third party.
Although the suit against Jacobs was dismissed in the trial court, the Supreme Court of Virginia has agreed to consider whether the lawyer’s relationship with the investigator required him to warn about the threat posed by the husband. The high court could send the case back for trial.
Investigator hired to serve divorce papers
In early 2011, Jacobs – a solo in practice since 1972 – was representing Margot Kons, the wife of Canadian citizen Ali Abid.
Abid was a former Iraqi national who ran a construction company in Weyers Cave, according to published reports.
Kons allegedly told Jacobs that Abid had purchased a gun and that Abid was seeing another woman. Jacobs wanted to have a private investigator try to serve Abid at the girlfriend’s home to establish adultery, according to allegations in court documents.
Jacobs hired Brown for the job.
Brown had started his own private investigation firm in 2008, according to an account in the National Post, a Canadian newspaper. He had been in the p.i. business with his family in Florida years before, and he had enlisted a stepson to help him in Virginia.
Jacobs did not warn Brown of the danger of personally serving Abid or that Abid was a risk to cause harm, according to the lawsuit against Jacobs.
The first claim filed against Jacobs stated simply that the lawyer knew Abid owned a gun and that Abid was “likely to cause harm to others” when served with divorce papers.
A second pleading – not accepted by the trial court – added additional details, apparently gleaned from depositions of Jacobs and Kons.
Kons allegedly told Jacobs that Abid had been “behaving strangely.” Jacobs reportedly had investigated whether there were legal grounds for authorities to take away Abid’s firearms. Jacobs did not share these details with Brown, according to Kons’ court pleadings.
Brown’s repeated attempts to serve Abid at the purported girlfriend’s home proved unsuccessful. Jacobs then told Brown to serve Abid anywhere he could find him.
The last word from Brown came on the morning of March 3, 2011. He left a phone message to tell his stepson he would be late for a scheduled meeting, according to an FBI report. He said he was tailing Abid.
Brown’s body was found in the trunk of his car at a Harrisonburg shopping mall three days later. He had been shot three times, with one of the shots a “close contact wound” to the back of his head, the report said.
On the day Brown disappeared, Abid apparently withdrew $11,376 from a bank, drove straight to Dulles Airport and took a series of flights to Iraq, the FBI said. He is still at large.
Harrisonburg authorities charged Abid with first degree murder and requested assistance from federal officials in locating him. He faces a federal charge of unlawful flight to avoid prosecution.
Commonwealth’s Attorney Marsha Garst says there is an Interpol “red notice” for Abid’s arrest. A red notice is described as similar to an international arrest warrant.
“Hopefully, we’ll get him,” Garst said.
Court action follows
Brown’s family, represented by state Sen. Mark D. Obenshain, filed a wrongful death suit against Abid and promptly won a default judgment of nearly $3 million. On behalf of the Brown family, Obenshain then took discovery depositions and, in 2013, filed suit against Jacobs.
“The lawyer knew the danger the husband posed in this particular case. The process server did not. The lawyer should have been required to share that information he held.” Obenshain said in an interview.
Last June, Fairfax Circuit Judge Jane Marum Roush rejected the claim against the lawyer.
She found the allegations fell short of showing a “special relationship” between Jacobs and Brown and – even with the additional facts alleged – failed to show the murder was “reasonably foreseeable by Jacobs as an imminent probability of harm.”
Obenshain went before a panel of three Supreme Court justices to ask for the right to appeal to the full court. The justices had “lots of questions,” he said.
The writ panel included Justices LeRoy F. Millette Jr., S. Bernard Goodwyn and Senior Justice Charles S. Russell, Obenshain said.
On June 2, the Supreme Court agreed to consider whether the allegations were sufficient to establish a special relationship giving rise to a duty to warn on the part of Jacobs.
“This is a case where the lawyer had more than the typical amount of information about an angry spouse,” Obenshain said.
Brown’s widow has “no recourse” if Roush’s decision is allowed to stand since Abid has fled the country, Obenshain wrote in his petition for appeal.
Represented by Grant D. Penrod of Harrisonsburg, Jacobs said allowing the suit to proceed would inflate the duty to warn of third-party danger.
Virginia courts have not addressed whether a lawyer has a duty to advise a process server about potential danger. Recognizing such a duty would “significantly expand” the recognized exception to the general no-duty rule, Penrod argued in his brief in opposition to the petition for appeal.
Penrod declined comment because the appeal is pending. Jacobs did not respond to a request for comment.
Based on the court’s usual schedule, oral arguments will be heard in the fall.
Little guidance for professionals
“In my experience, I can’t remember any instance where an attorney said, ‘Watch out for that guy,’” commented private investigator Philip A. Becnel IV of Arlington.
A former president of the Private Investigators Association of Virginia, Becnel said there is little precedent for lawyers giving warnings about the targets of process service, even though investigators work “in some of the most volatile situations that you can imagine.”
“In most instances, it’s the investigator who asks questions – or doesn’t,” Becnel said. “The attorney doesn’t generally volunteer.”
McLean lawyer and former private investigator William Lowrance said – as an investigator – he wanted to know about the situation he was walking into.
He said he would normally ask who he was serving, what was the background and whether there was going to be “trouble.”
“Maybe I’m overly cautious, I don’t know,” Lowrance said.
Even though the Brown murder was a hot topic at meetings of private investigators, Becnel said investigators generally did not discuss the dangers of angry targets.
“Maybe they should,” he said.