Petition — McCord v. Bailey
Supreme Court brief1981
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No.
IAN i3 {981
@. ‘Smaes
IN THE | .
Supreme Court of the Gunited States
OCTOBER TERM, 1981
JAMES W. McCORD, JR..,
Petitioner,
V.
F. LEE BAILEY,
GERALD ALCH,
BAILEY, ALCH AND GILLIS,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
RUFUS KING
RUFUS KING, Ili
KING & NEWMYER
910 - 17th Street, N.W.
Washington, D.C. 20006
(202) 466-5440
Attorneys for Petitioner
Washington, OC e CLB PUBLISHERS’ e LAW PRINTING CO e (20?) 393 0625
(i)
QUESTIONS PRESENTED FOR REVIEW
1. May collateral estoppel be invoked against a party
who has never litigated the precluded issue in any forum?
2. Is the standard for determining legal malpractice in
criminal cases the same as, and no less exacting than, the
test for constitutionally-required “effective assistance of
counsel’’?
3. Is a verdict and judgment of guilty in a criminal case
an absolute bar to claims for injury, negligent or deliberate,
otherwise assertible against the convicted defendant’s coun-
sel; is it true, thus, that only acquitted defendants have
protection against the indifference, incompetence or treach-
ery of their counsel; and is conviction the only cognizable
injury sufferable by accused wrongdoers caught up in the
administration of criminal justice?
4. Is the practice of forcing civil-case plaintiffs arbi-
trarily to “rest” by cutting off discovery with no relation to
trial schedules a misapplication of the Federal Rules?
(ii)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .....0.s0000c00suuueeeeeee ili
OPINIONS DELIVERED BELOW ........554005503scseeees
JURISDICTIONAL STATEMENT ........00ssccccesess 2
CONSTITUTIONAL PROVISIONS, STATUTES
AMD RULES. .0.0cccccsassucerseunsce5s eee 2
STATEMENT OF THE CASE. ......:..++0sssnenunesees zZ
ARGUMENT . .. ..cscccssctccvcvdusecand beans Meee 5
I. THE COURT OF APPEAL’S ENLARGE-
MENT OF COLLATERAL ESTOPPEL
IN THIS CASE IS CONTRARY TO ALi
PRIOR AUTHORITIES, INCLUDING
RECENT RULINGS BY THIS COURT......... 5
Il. THIS COURT SHOULD CLARIFY THE
LEGAL MALPRACTICE STANDARD,
THE “EFFECTIVE ASSISTANCE”
TEST, AND THE RELATION BETWEEN
THE TWO. ......0c0s0vs00ee00eeee ee eeeeeeene 6
III. THE HOLDING THAT A CONVICTED
DEFENDANT IS BARRED BY HIS CON-
VICTION FROM ANY RECOVERY FOR
ANY DERELICTION BY HIS COUNSEL
MUST BE OVERTURNED) .....50<1<0ss370005 es 7
IV. THIS CASE EXEMPLIFIES AN ABUSE
OF THE FEDERAL RULES OF CIVIL
PROCEDURE, PREJUDICING PLAIN-
TIFFS IN DISCOVERY EFFORTS,
WHICH SHOULD BE CURBED .....22::05caues 8
APPENDIX:
Opinion, McCord vy. Bailey et al., No. 79-1085
(decided September 9, 1980, United States Court
of Appeals for the District of Columbia............... la
Opinion, ibid., No. 74-1888 (decided May 19,
1978), United States District Court for the District
of Columbia. ..... 6. ccc sceseedss cases baa lb
(iti)
Amended Complaint, McCord v. Bailey et al., No.
74-1888 (filed August 1, 1975)..................
Opinion, United States v. Hearst, No. 78-3612
(decided October 17, 1980), United States Court
of Appeals for the Ninth Circuit .................
TABLE OF AUTHORITIES
Cases:
Allen v. McCurry,
No. 79-935 (decided December 9, 1980),
Supreme Court of the United States.............
Cuyler v. Sullivan,
No. 78-1832 (decided May 12, 1980), Supreme
Court of the United States ..............cccccece
Emich Motors Corp. v. General Motors Corp.,
Pe RE SOAP ee op ree onee e cs, hs
Neel v. Magna, Olney, Cathcart & Gelfand,
Ware ae ee GORE, PPT es oss kena ees
Niosi v. Aiello,
69 A.2d 57 (D.C. Mun. App. 1949)............
Parklane Hosiery Co. v. Shore,
OP SIA, POR PEPTIDE ooo acc ys tanh eee
United States v. De Coster,
Bee 28 198 (OC Cir. 1979) o.oo ecceus
United States v. Haldeman et al.,
559 F.2d 31 (D.C.Cir., en banc, 1977), cert. den.
RO ko eh oh areas Oey a
United States v. Hearst,
No. 78-3612 (decided October 17, 1980) United
States Court of Appeals for the Ninth Circuit....
United States v. McCord,
509 F.2d 334 (D.C.Cir., en banc, 1974), cert den.
Me WEAN. WOE ich Nn CORN EHRs sah ees eae
ee a
Page
(iv)
U.S. Constitution:
I ne ee ang eae aie ait 6
a I ns oo as vn os a saw us doh o o oa hee neu 2,6
Federal Rules of Civil Procedure:
ON is ag eh pac eicwe ne Ohne eea ee ee tS Creeks 9
ee ae eer ea eo ee 9
Se cae cee en aed es ce vate or erate cee 9
et U ye ewe cOn ee ors Cn ee eee ea 2,6
ERAS Sha lat bina ved MA ae Be MOS IME eR cate 9
” IN THE |
Supreme Court of the Anited States
OCTOBER TERM, 1981
No.
JAMES W. McCORD, JR.,
Petitioner, '
V.
F. LEE BAILEY,
GERALD ALCH,
BAILEY, ALCH AND GILLIS,
Respondents. '
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
OPINIONS DELIVERED BELOW
The opinion for which review is sought here is the
opinion of the United States Court of Appeals for the
District of Columbia Circuit in McCord v. Bailey et al.,
Case No. 79-1085, decided (with a partial dissent) on
September 9, 1980. This opinion has not yet been reported,
but is set forth in the attached Appendix (App.) A at page La.
The opinion of the United States District Court for the
‘Caption lists all , arties.
fe)
—
District of Columbia in the same case (C.A. No. 74-188,
filed May 19, 1978), also not yet reported, is set forth at
App. Pp. 1b.
JURISDICTIONAL STATEMENT
A timely petition for rehearing filed in the Court of
Appeals in this case was denied on October 15, 1980. The
instant petition for certiorari is authorized to be filed within
ninety days thereafter by §2101(c) of Title 18, U.S.C.
Jurisdiction in this Court grounds on § 1254 of Title 18;
jurisdiction in the Court of Appeals was conferred by
§1291.
CONSTITUTIONAL PROVISIONS, STATUTES
AND RULES
Petitioner’s arguments against the majority opinion of the
Court of Appeals in this case include a contention that it
conflicts with the Seventh Amendment (‘In Suits at com-
mon law, where the value in currency shall exceed twenty
dollars, the right of trial by jury shall be preserved ...’’), and
with Rule 38(a), Federal Rules of Civil Procedure (‘‘The
right of trial by jury as declared by the Seventh Amendment
to the Constitution or as given by a statute of the United
States shall be preserved to the parties inviolate’’).
STATEMENT OF THE CASE
Petitioner McCord is the ex-CIA wiretap expert arrested
in the premises of the Democratic National Committee in
the notorious Watergate case. Soon suspecting he was being
made a scapegoat, McCord went to Boston and retained F.
Lee Bailey, Bailey’s associate Gerald Alch, and their
partnership, Bailey, Alch and Gillis, in order to have
vigorous, competent and independent defense counsel.”
After his conviction in a trial wherein he was counselled not
to testify, prejudiced by give-away concessions to the
prosecution, subjected to perjured testimony, and provided
with only a fatuous ‘Patty Hearst”’ (duress) defense theory,
he became suspicious that Bailey and Alch had been serving
the cover-up conspiracy, aimed at silencing him and his
codefendants and engineering his conviction, instead of
fulfilling their professional obligations to him.
There is little doubt that such was the case. Though
“stonewalled” and crippled in his discovery efforts, McCord
has established clear ties between his attorneys and the great
Watergate conspiracy so dramatically exposed in United
States v. Haldeman et al., 559 F.2d 31 (D.C.Cir., en banc,
1977), cert. den. 429 U.S. 1120, e.g., Alch was a direct
intermediary in efforts to bribe McCord to remain silent:
Alch tried to force a red-herring ‘““CIA defense’ on McCord:
Bailey (himself then the subject of an investigation that
resulted in a federal indictment naming him) secretly assured
conspirator John Mitchell that McCord would not be
allowed to name him (Mitchell), and secretly reported
McCord’s decision not to testify to the latter; ... . ete.
McCord has also established in the instant case. by
uncontroverted affidavit-statements from emminent mem-
*Since his entire case was dismissed by judgment on the pleadings and
summary judgment, App. B p. 1b, McCord is entitled to have well-
pleaded allegations, and even his version of controverted facts, taken as
true at this stage.
7
4
bers of the District of Columbia Bar, that Alch and Bailey’s
performance was below the standards of skill, diligence and
integrity applied in the usual malpractice formula.
When new counsel entered the case for McCord, they
moved for a writ of error coram nobis alleging, for the firs
time, inadequate representation and disloyalty on the part of
Alch and Bailey. This was summarily dismissed by the trial
Court without an evidentiary hearing. On appeal to the
Court of Appeals the charges against Alch and Bailey were
made again, and again they were turned aside without a
hearing:
‘As a preliminary matter, we have no quarrel with
McCord’s assertion that disloyalty or conflict of
interest may, if substantial and proven, result in the
denial of effective assistance of counsel in contraven-
tion of the Sixth Amendment. We have little experience
with such claims and thus have not developed any
detailed standards to judge their merit. However,
accepting even the broadest view of disloyalty or
conflict of interest, we do not find that McCord has
alleged facts sufficient to justify either a new trial or a
hearing on his allegations.’’ United States v. McCord,
509 F.2d 334, 351-2 (D.C.Cir., en banc, 1974), cert.
den. 421 U.S. 930.
In the instant civil action, filed pursuant to § § 1331, 1332
& 1343 of Title 28, U.S.C., McCord specified four counts,
malpractice, malicious injury, conspiracy to injure, and
deprivation of civil rights (under § §1893 & 1895 of Title
42, U.S.C.), and recited a full list of consequent damages.
Amended Complaint, App. C, p. Ic. After discovery was cut
off, over his objection, the trial Court granted summary
judgment against McCord on the ground that he was
collaterally estopped as to all counts by the rejection of his
charges in the prior criminal case, App. B, p. 1b. The Court
—
5
also held that McCord’s complaint was dismissible because,
thanks to his jury-verdict conviction, he could not under any
circumstances show legal injury attributable to neglect or
treachery by his defense counsel. App. B, p. 4b.
On appeal the Court of Appeals reversed and remanded
because it concluded McCord had stated a cause of action
under the Ku Klux Klan Act | § 1985(2) of Title 42, U.S.C. ].
App. A, p. 12a. But it affirmed the no-damage bar to most of
McCord’s case, App. A, p. 7a, and, with one Judge
dissenting, the application of collateral estoppel, App. A. p.
2a. In reaching the latter conclusion the Court stated that
“the legal standards for ineffective assistance of counsel in
McCord’s criminal proceeding and for legal malpractice in
this action are equivalent.’’ App. A, p. 4a.
ARGUMENT
THE COURT OF APPEAL’S ENLARGE-
MENT OF COLLATERAL ESTOPPEL IN
THIS CASEIS CONTRARY TO ALL PRIOR
AUTHORITIES, INCLUDING RECENT
RULINGS BY THIS COURT.
In Allen v. McCurry, No. 79-935 (decided December 9,
1980), this Court once again considered the collateral estop-
pel doctrine, in its application to a § 1983 case, and once
again restated the cardinal requirement:
**... one general limitation the Court has repeatedly
recognized is that the concept of collateral estoppel
cannot apply when the party against whom the earlier
decision is asserted did not have a ‘full and fair
6
opportunity’ to litigate that issue in the earlier case.
Montana v. United States, 440 U.S. 147, at 153
(1979); Blonder-Tongue Laboratories, Inc. v. Univer-
sity of Illinois Foundation, 402 U.S. 313, at 328-329
(1971).” Slip Opinion, p. 5 [Citations amplified]
See also Emich Motors Corp. v. General Motors Corp., 340
U.S. 559, 569 (1951).
It is noteworthy that this Court has recently even divided
over the question whether full-dress litigation in an equity
case could be relied upon as a basis for collateral estoppel in
a jury-demand action on the law side—because of the
Seventh Amendment. Parklane Hosiery Co. v. Shore, 439
U.S. 322 (1979). Surely there can be little question that
here, with no hearing and no opportunity to litigate, the
Seventh Amendment safeguard must be called into play to
assure McCord his day in court, and his right to be heard by a
jury. See also Rule 38(a), Federal Rules of Civil Procedure.
Il.
THIS COURT SHOULD CLARIFY THE
LEGAL MALPRACTICE STANDARD,
THE “EFFECTIVE ASSISTANCE” TEST,
AND THE RELATION BETWEEN THE
Two.
By equating the test for legal malpractice in criminal cases
with the “effective assistance”’ standard under the Sixth
Amendment, App. A, p. 4a, the Court of Appeals in the
instant case has not only departed from its own most recent
pronouncements on the latter, United States v. De Coster,
624 F.2d 196, 204-6 (D.C.Cir. 1979), it has also created an
unfortunate nexus between two of the most confused and (by
this Court) neglected areas in the administration of criminal
>
justice. McCord contends the Court of Appeals erred: even
apart from the element of willful dereliction here,’ the
constitutional standard is (and should be) higher, far more
flexible, and more subjective than the simple, classic and
universally established tort-malpractice test, “exercising
that degree of skill and learning normally applied by
attorneys at law who practice in the | District of Columbia]”’.
But right or wrong, the instant opinion cannot fail to
spread confusion and doubt among future defendants and
litigants. This Court will sooner or later have to lay down
authoritative guidelines in both fields, and McCord respect-
fully urges that that be done here, in his case.
Ill.
THE HOLDING THAT A CONVICTED
DEFENDANT IS BARRED BY HIS
CONVICTION FROM ANY RECOVERY
FOR ANY DERELICTION BY HIS COUN-
SEL MUST BE OVERTURNED.
The trial Court and the Court of Appeals in this case have
fashioned a remarkable total immunity‘ for defense lawyers
from an old—and inappropriate—District of Columbia
precedent, Niosi v. Alello, 69 A.2d 57 (D.C. Mun. App.
1949). App. A, p. 8a. That case held, in a malpractice
>The Ninth Circuit, in a case which happens to involve one of the same
defendants, has granted relief for disloyalty and conflict of interest that
pales beside what McCord charges here. United States v. Hearst, No.
78-3612 (decided October 17, 1980), set forth herein at App. D., p. Id.
*See Nee/ v. Magne Olney, Cathcart & Gelfand, 491 P.2d 421, 429-
30 (Cal. 1971).
~~
8
action against an attorney for overlooking a statute of
limitations in a civil action, that there could be no recovery
because the barred suit couid not have been brought
anyway, for want of a proper party plaintiff.
Also, impliedly at least, the Court of Appeals denies relief
to McCord because it is not persuaded, at this long remove,
that a vigorous defense, and one or more of the neglected or
suppressed defense theories, would necessarily have won
him an acquittal.
The net effect of this is that no matter what their
indifference, or even active treachery, defense lawyers may
only be called to account by acquitted clients; and, con-
versely, reviewing courts are free to brand malpractice plain-
tiffs guilty and remediless as an incontestible matter of law.
Both those propositions can only make mischief. In the
development of standards and sanctions to deal with below-
minimum criminal defense practitioners, it must be recog-
nized that there are many points, from initial arrest to final
parole or pardon application, where the conduct or miscon-
duct of defense sounsel can aid—or injure—even a guilty
client. °
IV.
THIS CASE EXEMPLIFIES AN ABUSE OF
THE FEDERAL RULES OF CIVIL PRO-
CEDURE, PREJUDICING PLAINTIFFS
IN DISCOVERY EFFORTS, WHICH
SHOULD BE CURBED.
In the District of Columbia Circuit and elsewhere a
practice has developed, mainly at the instigation of the
defense bar, that handicaps and prejudices plaintiffs without
~ SSee the discussion of Cuyler v. Sullivan, No. 78-1832 (decided May
12, 1980) at App. D, pp. 6-7d.
contributing anything towards the efficient administration
of the civil courts—and which is inconsistent with both the
letter and the spirit of the Federal Rules. That is the practice
of fixing an arbitrary cut-off for discovery without any
relation to trial schedules or trial dates.
McCord was victimized by this. Encountering unusual
difficulties (most deponent-witnesses were busy lawyers,
represented by busy lawyers; some were still in jeopardy or
actually involved in civil and criminal proceedings; some
“stonewalled” or kept retreating into the briarpatches of
privilege and “‘work product’’; and the trial Court ruled
against him at nearly every turn), he was cut off arbitrarily
before any trial date had been determined. In effect, this
obliged him to “rest,” as if he were carrying a burden of
proof, and indeed the Court of Appeals notes, “the district
court also found that McCord had failed to prove... etc.”
App. A, p. 7a.
The Federal Rules of Civil Procedure are intended to
secure the just, speedy, and inexpensive determination of
every action. Rule 1. Discovery may proceed in any
sequence, and simultaneously by all parties. Rule 26(d).
Motions for failure to state a claim on which relief can be
granted, and for judgment on the pleadings, may be made
within such time as not to delay the trial, Rule 12(b) & (c),
and the latter may even be made at the trial. Rule 12(h)(2>.
And motions for summary judgment may be made “‘at any
time’ (more than 20 days after commencemert of the
action). Rule 56(a) & (b).
Rule 56 deals specifically with the situation wherein a
party needs additional time (and discovery opportunity) to
respond to a dispositive motion depending on facts:
“(f) When Affidavits are Unavailable. Should it
appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by
10
affidavit facts essential to justify his opposition, the
court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained
or depositions to be taken or discovery to be had or may
make such other order as is just.”
Plainly, accordingly, the Rules were intended to allow all
litigants to press discovery as far as they could, up to the time
of trial. If plaintiffs are to be pressured or cut off, the only
justifiable grounds for doing so is the availability of a trial
date. Freezing plaintiffs’ cases earlier, to advantage defen-
dants in making dispositive motions, is unfair, unrelated to
any legitimate administrative purpose, and at variance with
the Rules.
Respectfully submitted,
RUFUS KING
RUFUS KING, III
KING & NEWMYER
910 - 17th Street, N.W.
Washington, D.C. 20006
\ (202) 466-5440
Attorneys for Petitioner
January 12, 1981
APPENDIX A
United States Court of Aupreals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 79-1085
JAMES W. McCorD, JR., APPELLANT
¥i
F. LEE BAILEY, ET AL.
Appeal from the United States District Court
for the District of Columbia
(D.C. Civil No. 74-1888)
TS Ce I A at
Jucgmayt cxotvored
Argued October 17, 1979 this Jato
~“<E8
Decided September 9, 1980
Rufus King, Sr., with whom Rufus King, III was on
the brief, for appellant.
Barry E. Cohen, with whom Roger E. Zuckerman,
Roger C. Spaeder, Richard A. Stanley, and Wendy Manz,
were on the brief, for appellees.
la
Before TAMM * and WALD, Circuit Judges, and PHILIP
NICHOLS, JR.,** Judge, United States Court of Claims.
Opinion for the court filed by Circuit Judge TAMM.
Opinion filed by Circuit Judge WALD, concurring in
part and dissenting in part.
TAMM, Circuit Judge: With this action we are called
upon to review yet another canto in the seemingly cease-
less saga of Watergate. Plaintiff James McCord, Jr.,
sued his criminal trial attorneys, defendants F. Lee
Bailey, Gerald Alch, and the firm of Bailey, Alch & Gillis,
for malpractice, conspiracy to represent incompetently,
and conspiracy to deprive civil rights. The district court
granted defendants’ motion for summary judgment. Mc-
Cord anpeals. We agree with the district court that
either collateral estoppel or McCord’s failure to show
that he has suffered any legally cognizable injury pre-
cludes McCord’s malpractice action; we also believe, how-
ever, that McCord may have a colorable claim under the
first clause of 42 U.S.C. § 1985/2) (Supp. II 1978). We
therefore reverse the decision of the district court and
remand the case for further proceedings not inconsistent
with this opinion.
I
In June of 1972, Washington’s Metropolitan Police
arrested McCord with four others at the Democratic
National Committee headquarters. McCord was tried in
federal district court, and eventually convicted of burg-
lary, possession of intercepting devices, interception of
oral and wire communications, and conspiracy to commit
* Circuit Judge Leventhal, who was a member of this panel
when the case was heard, died before the panel had agreed
on a disposition. Circuit Judge Tamm was drawn by lot to
replace Judge Leventhal in the consideration of this appeal.
** Sitting by designation pursuant to 28 U.S.C. § 293(a)
(1976).
~_—
2a
these offenses. McCord then petitioned the trial court for
relief in the nature of a writ of error coram nobis,
raising in part allegations of ineffective counsel at the
criminal proceedings. McCord claimed that his attorneys
had been disloyal because they discussed his case with
attorneys for the other defendants and with some of
McCord’s co-conspirators, because they failed to cross-
examine key government witnesses with sufficient vigor,
and because they did not raise a defense of official au-
thorization for McCord’s acts. The district court denied
McCord’s petition in late 19738. McCord appealed this
decision and his conviction the following year, repeating
his claim of ineffective assistance of counsel as one
ground for reversal. This circuit, sitting en bane, dis-
cussed these contentions in detail, found them meritless,
and affirmed the conviction. See United States v. McCord,
509 F.2d 334, 343-45, 351-52 (D.C. Cir. 1974) (en banc),
cert. denied, 421 U.S. 930 (1975).
In August of 1975, McCord sued his criminal trial
attorneys on four counts: negligent and careless repre-
sentation, intentionally incompetent representation, con-
spiracy to represent incompetently, and conspiracy to
deny McCord his constitutional and statutory rights.
After more than two years of extensive discovery, the
defendants moved for summary judgment. The district
court granted this motion, finding that collateral estoppel
barred plaintiff's claims, or alternatively, that plaintiff
lacked a legal injury for which relief could be granted.
Plaintiff McCord appeals that judgment.
IT
Collateral estoppel “prohibits parties who have litigated
one cause of action from relitigating in a second and
different cause of action matters of fact which were. or
necessarily must have been, determined in the first liti-
gation.” Tutt v. Doby, 459 F.2d 1195, 1197 (D.C. Cir.
3a
1972). See Nasem v. Brown, 595 F.2d 801, 205 (D.C.
Cir. 1979) ; RESTATEMENT (SECOND) OF JUDGMENTS §& 68
(Tent. Draft No. 4, April 15, 1977). Like res judicata,
collateral estoppel promotes judicial efficiency. As the
Supreme Court has noted,
a party who nas had one fair and full opportunity to
prove a claim and has failed in that effort should not
be permitted to go to trial on the merits of that
claim a second time. Both orderliness and reasonable
time saving in judicial administration require that
this be so unless some overriding consideration of
fairness to a litigant dictates a different result in
the circumstances of a particular case.
Blonde Tongue Laboratories, Inc. v. University of Ill.
nois Foundation, 402 U.S. 318, 324-25 (1971) (quoting
Bruszewski v. United States, 181 F.2d 419, 421 (3d Cir.),
cert, denied, 340 U.S. 865 (1950)). For this doctrine to
apply, the same issue must be at stake in both cases, and
the issue must have been litigated and decided in the
first suit.’
' Because it is the defendants who raise collateral estoppel
to bar the plaintiff’s relitigation of the malpractice issues, we
need not be concerned that the defendants were neither
parties nor privies to the criminal trial or appeal. In Blonder-
Tongue Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. 313, 328-29 (1971), the Court held that ‘“‘defensive
use” of a prior judgment—that is, a defendant’s assertion of
collateral estoppel to prevent a plaintiff’s litigation of issues
the plaintiff previously litigated and lost—was permissible
even though the defendant was not himself bound by the
prior judgment. Last year the Court reaffirmed this rule.
See Parklane Hosiery v. Shore, 439 U.S. 322 (1979). Dis-
tinguishing defensive use from offensive use (a plaintiff’s
assertion of collateral estoppel to prevent a defendant’s \iti-
gation of issues the defendant previously litigated and lost),
the Parklane Court observed that even if the defendant was
not himself subject to an estoppel arising from the prior
judgment he asserts against the plaintiff, defensive use pro-
motes judicial economy without being unfair. See id. at
329-31.
4a
McCord’s allegations in this case encomp4ss in all ma-
terial respects the same claims he presented in his coram
nobis petition and his criminal conviction appeal. These
claims center on ineffective assistance and intentional
betrayal. Though in his civil case he couches his claims
primarily in tort, he raises no new material contentions.*
Furthermore, the legal standards for ineffective assist-
ance of counsel in McCord’s criminal proceedings and for
legal malpractice in this action are equivalent. At the
time of McCord’s criminal appeal, this court defined
ineffective assistance of counsel as the denial of a de-
fendant’s entitlement “to the reasonably competent assist-
ance of an attorney acting as his diligent conscientious
advocate.” United States v. DeCoster (DeCoster I), 487
F.2d 1197, 1202 (D.C. Cir. 1973). The concept of reason-
able competence is also the standard “traditionally and
universally employed as the measure of the lawyer’s
civil liability .. . .” United States v. DeCoster (De-
Coster III), No. 72-1283, slip op. at 10 (D.C. Cir. July
10, 1979) (Robinson, J., concurring), cert. denied, 100 S.
Ct. 302 (1979). See Marzullo v. Maryland, 561 F.2d
540, 544 & n.9 (4th Cir. 1977), cert. denied, 435 U.S.
1011 (1978) ; Gard, Ineffective Assistance of Counsel——
Standards and Remedies, 41 Mo. L. Rev. 483, 495-96
* When asked during ora] argument to identify any issues
of fact concerning his defense attorney’s performance that
had not been raised during the criminal] proceedings, Mc-
Cord’s counsel responded only: “The overlooking, and we
maintain and there’s evidence, the intentional suppressing of
that [official authorization] defense as a defense for McCord
in the trial of the case.” This issue was in fact argued in the
coram nobis proceeding, see, e.g., Supplemental Memorandum
of the United States in Opposition to Motion by Defendant
McCord in the Nature of a Writ of Coram Nobis at 4 & n.5,
United States v. McCord, Crim. No. 1827-72 (D.D.C. Sept. 18,
1973), and in the crimina! appeal, see United States v. Me-
Cord, 509 F.2d 334, 353 n.69 (D.C. Cir. 1974) (en banc),
cert. denied, 421 U.S. 980 (1975).
Sa
(1976). See also McMann v. Richardson, 397 U.S. 759,
771 (1970); RESTATEMENT (SECOND) OF TorTs § 299A
(1965); Bines, Remedying Ineffective Representation in
Criminal Cases: Departures from Habeas Corpus, 59
Va. L. REV. 927, 937 (1973).
Given the similarity of both the facts in issue in this
ease and the applicable legal standards, estoppel may be
considered if these issues were actually litigated in Mc-
Cord’s criminal proceedings.” McCord asserts that they
were not. He claims that a proper evidentiary hearing
did not take place during consideration of the coram nobis
petition or on appeal, thus denying him the opportunity
to develop the facts of his case fully. We disagree.
A hearing need not be held for collateral estoppel to
apply. When the facts are undisputed or accepted as
true, a hearing would serve no purpose. Disposition by
summary judgment will suffice, for example, because
“there is no issue of material fact and... the moving
party is entitled to a judgment as a matter of law,”
FED. R. Civ. P. 56(c). See Exhibitors Poster Exchange,
Inc. v. National Screen Service Corp., 517 F.2d 110, 115-
16 (5th Cir. 1975), cert. denied, 423 U.S. 1054 (1976).
In McCord’s criminal appeal we accepted all of McCord’s
factual assertions as true, but still rejected his conten-
tions. See United States v. McCord, 509 F.2d 334, 352
3 McCord does not contest that litigation of an issue in a
criminal proceeding can estop a party from raising the same
claim in a subsequent civil action. See Emich Motor Corp. v.
General Motors Corp., 340 U.S. 558, 568-69 (1951); McNally
v. Pulitzer Pub. Co., 532 F.2d 69, 76 (8th Cir.), cert. denied,
429 U.S. 855 (1976). This “rule is not changed by the fact
that the [civil] action is brought by the person convicted in
the prior criminal action... .” Willard v. United States, 422
F.2d 810, 812 (5th Cir.), cert. denied, 898 U.S. 913 (1970).
See Cardillo v. Zyla. 486 F.2d 473 (1st Cir. 1973); United
States v. Lima, No. 79-502, slip op. at 4 (D.C. App. Mar. 12,
1980) ; Ross v. Lawson, 395 A.2d 54 (D.C. 1978).
6a
nn. 65-66 (D.C. Cir. 1974), cert. denied, 421 U.S. 930
(1975). Having accepted McCord’s factual assertions, a
hearing now would amount to little more than a “useless
ritual.” Exhibitors Poster Exchange, Inc. v. National
Screen Service Corp., 517 F.2d at 115.
Estoppel is not inappropriate because a contested issue
is first raised after trial. McCord first asserted his in-
effective assistance of counsel claim in his motion for a
writ of error coram nobis. See Supplemental Memoran-
dum on Points and Authorities in Support of Motion in
the Nature of a Writ of Error Coram Nobis at 2, United
States v. McCord, Crim. No. 1827-72 (D.D.C. Aug. 9,
1973).* Judge Sirica denied the motion after considering
the parties’ memoranda and arguments. United States v.
McCord, Crim. No. 1827-72 (D.D.C. Nov. 7, 1973) (order
denying writ of error coram nobis). On appeal, the
parties fully briefed the issue, and it received a full dis-
cussion from this court. See United States v. McCord,
509 F.2d at 351-53. Thus McCord has already litigated
the issue twice and lost, see Rosenberg v. Martin, 478
F.2d 520, 565 (2d Cir.), cert. denied, 414 U.S. 817
(1973), making defensive invocation of collateral estop-
pel appropriate, see Parklane Hosiery Co. v. Shore, 439
U.S. 322, 329-31 (1979); Blonder-Tongue Laboratories,
Inc. v. University of Illinois Foundation, 402 U.S. 318,
328-29 (1971).°
Moreover, the circumstances of this case particularly
favor invocation of collateral estoppel. McCord had every
incentive in his criminal proceedings to argue aggressively
for his claim of ineffective assistance of counsel. As
noted above, he had a full and fair opportunity to prove
*The court in McCord apparently believed the issue had
not been raised before the district court. Sce United States
v. McCord, 509 F.2d at 351 n.61.
5 See note 1 supra.
Ta
his case. Precluding reconsideration of a litigated claim
saves valuable judicial time and resources, while reaffirm-
ing the certainty and stability of judicial decisions. See
Johnson v. United States, 576 F.2d 606, 609-19 (5th
Cir. 1978). Furthermore, estoppel saves Bailey, Alch, and
their former law firm from the burden of defending a
lawsuit on an issue that has already been fully adjudi-
cated. See Parklane Hosiery v. Shore, 489 U.S. at 326-
27; Tutt v. Doby, 459 F.2d 1195, 1199 (D.C. Cir. 1972).
In sum, plaintiff McCord seeks to relitigate issues con-
cerning the quality of his criminal trial counsel that he
raised in the course of the criminal proceedings. Having
twice raised these issues and lost, McCord cannot raise
the claims anew in a civil case.
ITI
The district court also found that McCord had failed
to prove that defendants’ alleged misdeeds caused him
any actual injury. McCord’s only claim of loss from his
counsel’s negligence, however, is McCord’s belief that
Alch failed to assert defenses that would have exonerated
him. We agree with the district court that this claim is
not sufficient to support a suit for legal malpractice.
As a plaintiff in a malpractice suit,“ McCord must
demonstrate that the defendants’ actions caused a legally
® Count 3 of plaintiff’s amended complaint alleges that the
defendants took part in a conspiracy to deprive McCord of
proper representation. However, civil conspiracy is not in
and of itself a civil wrong, giving an independent cause of
action. Lamont v. Haig, 590 F.2d 1124, 1136 n.73 (D.C. Cir.
1978). See Edwards v. James Stewart & Co., 160 F.2d 935,
936-37 (D.C. Cir. 1947) ; Blankenship v. Boyle, 329 F. Supp.
1089, 1099 (D.D.C. 1971). But see also Note, Civil Con-
spiracy: A Substantive Tort?, 59 Bost. U.L. REv. 921, 926
(1979) (separate cause of action for civil conspiracy permit-
ted in a few jurisdictions under limited circumstances).
We have studied plaintiff’s complaint closely, but we are
unable to discern that he pleads or intimates any cause of
8a
cognizable injury. Becker v. Colonial Parking, Inc., 409
F.2d 1130, 1136-87 (D.C. Cir. 1969); Richardson v.
Gregory, 281 F.2d 626, 629 (D.C. Cir. 1960). The plain-
tiff must show, among other things, that his attorney’s
“negligence resulted in and was the proximate cause of
loss to the client.” Niosi v. Aiello, 69 A.2d 57, 60 (D.C.
1949). Thus an attorney is not liable for malpractice if
his client has suffered no damages.
McCord’s sole assertion of injury proximately caused
by his counsels’ malpractice is that Alch negligently
failed to argue a defense of “official authorization” for
the Watergate operation and thereby denied McCord a
successful defense. McCord claims he participated in the
break-in and bugging because he believed that the At-
torney General of the United States had authorized and
approved the activity and that in so doing the Attorney
General had made lawful what would otherwise have
been unlawful behavior. McCord further asserts that he
told defendant Alch about his belief that he had been
officially authorized, and that Alch either negligently or
maliciously failed to present the defense to the court.
Such a defense, McCord contends, could have led to his
acquittal.
action other than legal malpractice and deprival of civil
rights. Cf. Fielding v. Brebbia, 399 F.2d 1008, 1004 (D.C.
Cir. 1968) (complaint alleged attorney had committed a
breach of fiduciary duty). We are not free to fabricate plead-
ings for either party. As McCord himself reminds us,
{wlje must predicate our judgment upon the record as
it comes to us, not upon some theoretical or philosophical
idea of what the record might have been had the plead-
ings and the record in the trial court presented us with a
wide latitude for study and a multiple selection of possi-
ble dispositions. Upon the present record we have more
voice than power.
Brief for Appellant at 34 (quoting Pearson v. Dodd, 410 F.2d
701, 709 (D.C. Cir.) (Tamm, J., concurring), cert. denied,
395 U.S. 947 (1969) ).
9a
A division of this court has suggested by way of a per
curiam reversal that a limited defense to a criminal
charge exists for reasonable, good faith reliance on the
apparent authority of a government official to authorize
otherwise unlawful activity. United States v. Barker,
546 F.2d 940 (D.C. Cir. 1976) (per curiam). Writing
in a separate opinion, Judge Wilkey stated that a de-
fendant asserting this defense must “show that his re-
liance was objectively reasonable under the particular
circumstances of his case.” Jd. at 949 (Wilkey, J.)
(separate opinion) (original emphasis). Judge Merhige
agreed that the defense was available “if, and only if, an
individual (1) reasonably, on the basis of an objective
standard, (2) relies on a (3) conclusion or statement of
law (4) issued by an official charged with interpretation,
administration and/or enforcement responsibilities in the
relevant legal field.” Jd. at 955 (Merhige, J.) ‘separate
opinion) (emphasis added) .’
Even if we assume that after Barker a criminal act
will be excused if the defendant was misled by a govern-
ment official into believing that the act was lawful, Mc-
Cord cannot make a colorable argument under either
Judge Wilkey’s or Judge Merhige’s formulation. Clearly
McCord must show that he had some objective basis to
believe the Watergate operation enjoyed official sanction.
Such a showing is unimaginable. McCord’s employer was
not a government agency, but a political committee.
McCord did not believe his supervisor, Gordon Liddy, was
other than a private individual. McCord had no direct
contact with any government official, nor did he have
reason to believe Liddy functioned as an intermediary
for anyone acting in an official capacity. McCord con-
—
7 Judge Leventhal dissented in Barker because he did not
believe any mistake of law defense actually applied to the
Watergate circumstances. See United States v. Barker, 546
F.2d 940, 957-73 (D.C. Cir. 1976) (Leventhal, J., dissenting).
10a
ceded before the Senate Watergate Committee that his
bugging and surveillance all concerned political activities
and that McCord himself harbored suspicions that the
operations were unrelated to national security or other
legitimate government interest.’ Thus to the extent there
is an official authorization defense, it could not apply to
McCord. See Democratic National Committee v. McCord,
416 F. Supp. 505, 508-09 (D.D.C. 1976). Accordingly,
had Alch or Bailey raised the defense at McCord’s trial,
Judge Sirica would have stricken it on its face; there
could have been no difference in the trial’s outcome.
McCord has failed to indicate how he could successfully
establish injury, an essential element of his claim, and
the defendants were entitled to judgment as a matter of
law on this issue. The district court did not err when
it identified the absence of any legally cognizable harm
as an alternative basis for granting summary judgment.
8 See Hearings on Watergate and Related Activities Before
the Senate Select Comm. on Prvsidential Campaign Activities,
93d Cong., Ist Sess., pt. 1, at 166 (1973). Judge Bazelon,
speaking for this circuit in affirming McCord’s criminal con-
viction, concluded that
{McCord’s] testimony before the Watergate Committee
and the newly discovered evidence discussed in the text
both tend to support the conclusion that McCord at no
time believed his authorization was based on considera-
tions of the domestic security of the United States, sec
Hearings on Watergate and Related Activities Before
the Senate Select Comm. on Presidential Campaign Ac-
tivities, 983d Cong., Ist Sess., pt. 1, at 127-28, 173-76, 203
(1973) ...; Trial Tr. at 1031. In light of this factual
confusion and the problematic legality of McCord’s de-
fense, we find no plain error in the failure to raise the
defense sua sponte.
United States v. McCord, 509 F.2d 334, 348 n.18 (D.C. Cir.
1974) (en banc), cert. denied, 421 U.S. 940 (1975).
IV
In the fourth and final count of his amended complaint,
plaintiff McCord asserts claims against the defendants
under 42 U.S.C. $$ 1983, 1985(2), (3) (Supp. IT 1978)."
* Section 1983 provides that:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or Ter-
ritory, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. 1983 (1976). In 1979, Congress expanded the
coverage of § 1983 to include acts under color of District of
Columbia law. Pub. L. No. 96-170, § 1, 93 Stat. 1284 (1979).
This amendment has no bearing upon McCord’s case, how-
ever, because McCord does not contend that any deprivation
of his rights occurred after the effective date of the amend-
ment, December 29, 1979. See id. § 3.
Section 1985, subsections (2) and (3), provides that:
(2) If two or more persons in any State or Territory
conspire to deter, by force, intimidation, or threat, any
party or witness in any court of the United States from
attending such court, or from testifying to any matter
pending therein, freely, fully, and truthfully, or to in-
jure such party or witness in his person or property on
account of his having so attended or testified . . .; or if
two or more persons conspire for the purpose of imped-
ing, hindering, obstructing, or defeating, in any manner,
the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the
laws, or to injure him or his property for lawfully en-
forcing, or attempting to enforce, the right of any per-
son, or class of persons, to the equal protection of the
laws;
(3) [I]n any case of conspiracy set forth in this section,
if one or more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such con-
spiracy, whereby another is injured in his person or
12a
The district court did not discuss these allegations. Find-
ings of fact and conclusions of law must be “sufficiently
comprehensive and pertinent to the issues to provide a
basis for decision.” Schilling v. Schwitzer-Cummins Co.,
142 F.2d 82, 84 (D.C. Cir. 1944). See Kelly v. Ever-
glades Drainage District, 319 U.S. 415, 420-22 (1943)
(per curiam). Although inadequate findings and con-
clusions may be remanded to the district court for supple-
mentation, “we will not remand a case for more specific
findings if doing so will consume precious time and
judicial resources without serving any purpose.” LaSalle
Extension University v. FTC, No. 79-1270, slip op. at 7
(D.C. Cir. June 5, 1980) (per curiam). We therefore
must examine each of McCord’s civil rights contentions
to determine whether further consideration by the dis-
trict court is required.
A. McCord’s Causes of Action Under Sections 1988,
1985(3), and the Second Clause of 1985(2)
To maintain a cause of action under section 1983,
McCord must show that the defendants deprived him of
his civil rights “under color of state law.” Griffin v.
Breckenridge, 403 U.S. 88, 99 (1971). On this record
McCord could not make the required showing. The
defendants appeared on McCord’s behalf at his criminal]
trial. Lawyers may be officers of the court, but “ ‘they
are not officers of the state within the meaning of [sec-
tion 1983].’” French v. Corrigan, 432 F.2d 1211, 1215
property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party
so injured or deprived may have an action for the re-
covery of damages, occasioned by such injury or depriva-
tion, against any one or more of the conspirators.
42 U.S.C. § 1985(2), (3) (Supp. II 1978).
Our discussion of injury, see part III supra, is not applica-
ble here.
13a
(7th Cir. 1970) (quoting Jones v. Jones, 410 F.2d 365,
366 (7th Cir. 1969), cert. dented, 396 U.S. 1013 (1970) ),
cert. denied, 401 U.S. 915 (1971). Accord, Brown v.
Chaffee, 612 F.2d 497, 501 (10th Cir. 1979). In their
capacities as representatives of a client in court, private
counsel do not act under color of state law. Slavin v.
Curry, 574 F.2d 1256, 1265 (5th Cir. 1978); Fine v.
City of New York, 529 F.2d 70, 74 (2d Cir. 1975).
McCord argues, however, that the defendants are sub-
ject to section 1983 by virtue of their alleged conspiracy
with various federal officials. Even if MeConrd’s factual
allegations are correct, such a conspiracy fails to satisfy
section 1983’s requirements. As the Supreme Court stated
in District of Columbia v. Carter, 409 U.S. 418 (1973),
section 1983 “deals only with those deprivations of rights
that are accomplished under the color of the law of ‘any
State or Territory.’” Jd. at 424. Actions of federal
officers are outside its proscriptions. See id. at 424-25.
McCord’s claim under 42 U.S.C. $ 1985(3) is equally
without merit. In Griffin v. Breckenridge, 403 U.S. 88
(1970), the Court held that although section 1985 reaches
private conspiracies as well as those involving state ac-
tion, the language, legislative history, and constitutional
basis of the statute indicate that a plaintiff under section
1985/3) must allege and prove “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action.” Jd. at 102. Accord, e.g.,
Ellis v. Cassidy, No. 79-4160, slip op. at 3850 (9th Cir.
June 20, 1980). Plaintiff McCord cannot pretend that
he was the object of civil rights deprivation because of his
race or membership in some other class.
McCord also asserts that the defendants conspired with
others to dissuade him from testifying in his own behalf
the grand jury and at his trial, thereby giving rise to
a cause of action under 42 U.S.C. § 1985(2).° The
'” See note 9 supra.
14a
second half of section 1985(2) does not apply to McCord.
Like section 1985(3), it specifies an intent to deny equal
protection of the laws and draws its constitutional basis
from section 5 of the fourteenth amendment, which gives
Congress the power to legislate against obstructions of
justice in a state. Such a construction avoids any ques-
tion of Congress’s authority to enact this provision. See,
e.g., Brawer v. Horowitz, 535 F.2d 830, 839-40 (3d Cir.
1976).
B. McCord’s Cause of Action Under the First Clause of
Section 1985(2)
The requirement of discriminatory animus in actions
under the first half of section 1985(2) presents a ques-
tion of first impression in this circuit.’ Like the Third
Circuit, “[w]e approach the perfidious syntax of
$ 1985(2) with some reserve for ... there is a dearth
of authority to light our way.” Brawer v. Horowitz,
535 F.2d at 837.
We begin with the language of the statute itself. See,
e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197
(1976); Zerilli v. The Evening News Association, No.
79-1298, slip op. at 6 (D.C. Cir. June 11, 1980). The
first clause of section 1985(2) creates a cause of action
[i]f two or more persons in any State or Territory
conspire to deter, by force, ‘atimidation, or threat,
any party or witness in any court of the United
States from attending such court, or from testifying
to any matter pending therein, freely, fully, and
"' Decisions in other circuits have reached differing conclu-
sions. Compare, e.g., Brawer v. Horowitz, 535 F.2d 830, 840
(3d Cir. 1976) (showing of discriminatory animus not re-
quired) and Kelly v. Foreman, 384 F. Supp. 1352, 1355 (S.D.
Tex. 1974) (same) with Jones v. United States, 401 F. Supp.
168, 172-74 (E.D. Ark. 1975) (plaintiff must show class-
based, invidiously discriminatory intent), aff’d, 536 F.2d 269,
271 (8th Cir. 1976), cert. denied, 429 U.S. 1089 (1977).
1Sa
truthfully, or to injure such party or witness in his
person or property on account of his having so at-
tended or testified... ;
42 U.S.C. $ 1985(2) (Supp. II 1978). Thus the first
clause, unlike its companion provisions, prohibits con-
spiracies to interfere with the integrity of the federal
judicial system. It does not demand a denial of “equal
protection of the laws,” nor is an implication of such a
requirement necessary to avoid constitutional shoals.’
According to the Supreme Court, the Reconstruction
civil rights acts are to be “accord{ed| a sweep as broad
as [their] language.” Jones v. Alfred H. Mayer, 392
U.S. 409, 437 (1968) (quoting United States v. Price,
383 U.S. 787, 801 /1966)). Accord, Griffen v. Brecken-
ridge, 403 U.S. 88, 97 (1971). Given the manifest mean-
ing and the absence of reason for restrictive reading, we
do not believe a class-based, invidiously discriminatory
intent is an element of a cause of action under the first
clause of section 1985(2). See, e.g., Brawer v. Horowitz,
535 F.2d at 840. Our instructions are clear: ‘‘Where the
language is plain and admits of no more than one mean-
12 The constitutional basis for the first clause of § 1985 (2)
is Congress’s plenary power over the federal courts. The Con-
stitution grants Congress power ‘“‘[t]o constitute Tribunals
inferior to the supreme Court,” U.S. CoNsT., art. I, § 8, cl. 8,
and Congress enjoys wide latitude in effectuating its consti-
tutional powers, see McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316 (1819). Preserving the integrity of the federal
judicial process clearly includes discouraging all conspiracies,
whatever their motivation or target, that use threats, force,
or intimidation to deter free, full, and truthful testimony.
See Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1341
n.19 (7th Cir.) (dictum), cert. denied, 434 U.S. 975 (1977) ;
Brawer v. Horowitz, 535 F.2d at 840; Kelly v. Foreman, 384
F. Supp. at 1855. Congress lacked an equivalent authority
over state courts, so the equal protection language in the
second half of § 1985(2) was inserted to ground that portion
of the statute on Congress’s power under $ 5 of the fourteenth
amendment. See pages 18-22 infra.
l6a
ing the duty of interpretation does not arise and the rules
which are to aid doubtful meanings needs no discussion.”
Caminetti v. United States, 242 U.S. 470, 485 (1917).
Even if we were obligated to Juok beyond the face of
the statute, as the defendants suggest, we would find that
the legislative history supports our conclusion. Reinfore-
ing the sanctity of the federal judicial process for all
citizens was one objective Congress had in mind when
it enacted the source of section 1985, the Ku Klux Klan
Act of 1871, Act of Apr. 20, 1871, 17 Stat. 18. See pages
14-15 infra. Moreover, the draftsman of the original
legislation added the “denial of equal protection of the
laws” phrase to his bill solely to allay doubts about the
section’s constitutionality that were raised by the bill’s
opponents. Because the bill’s friends and foes acknowl-
edged the federal government’s power to protect its own
courts, this phrase was not attached to the language that
is now the first clause of section 1985(2). See pages 15-
18 infra.
Protection of civil rights was not the only reason for
the enactment of the Ku Klux Klan Act of 1871. Restora-
tion of civil authority, including restoration of the fed-
eral courts’ ability to proceed without improper interfer-
ence, was a major concern. The statute has its roots in
the racial violence that erupted in the southern states at
the end of the Civil War. The Ku Klux Klan had been
organized in 1866. The subsequent five years had been
marked by increasing numbers of attacks, often fatal,
against blacks and Union sympathizers, including many
federal officials. By 1871, the turbulence in the South
had caused considerable consternation in Congress. On
March 23, 1871, President Grant asked for legislation
giving him additional authority to control the apparent
chaos. Five days later, Representative Samuel Shella-
barger of Ohio introduced a bill to meet the President’s
request. See generally District of Columbia v. Carter,
409 U.S. 418, 425-26 (1973).
17a
Throughout the deliberations tnat followed in the House
and Senate, a recurring theme was that the needa to pre-
serve orderly government mandated enactment of Repre-
sentative Shellabarger’s bill. President Grant’s message
had declared that “‘|a] condition of affairs now exists in
some States of the Union rendering .. . the carrying of
the mails and the collection of the revenue dangerous.”’
CONG. GLOBE, 42d Cong., 1st Sess. 244 (1871). Pro-
ponents of Shellabarger’s bill repeatedly raised the specter
of a renewed spirit of insurrection running rife in the
South. Representative Buckley, for example, warned the
House of Representatives that this spirit
still defies the national authority, sets at naught the
laws of the country, and tramples upon the natural
and political rights of our fellow citizens. The United
States mails are stopped; route agents are shot dead
while assorting the mails, and others are driven from
their routes.
Your revenue officers are resisted and scourged
and driven from their homes and families and out
of the country. .. . In certain communities lawless-
ness is widespread and on the increase. Crimes are
fearfully common. The value of human life is dis-
regarded. Murderers go unpunished. ... Terrorism
reigns. The apprehension of violence prevents good
men from arresting the evils they see.
Id. at app. 190. See id. at 519 (remarks of Rep. Shella-
barger). Thus congressional concerns encompassed more
than racial equality or personal rights. The operation
of government, especially the federal government, was
threatened. Civil survival was at stake. See, e.g., id. at
830 (remarks of Sen. Stewart). To prevent what ap-
peared to be impending anarchy, Congress must have
intended its measure to reach more than attacks on gov-
ernment operations to further racial or other invidious
discrimination, at least to the extent the Constitution
permitted Congress to act.
18a
Indeed, the bill as originally proposed created a broad
remedy to address Congress’s broad concerns. Section 2
of the bill would have made it a federal felony to conspire
with another to commit, among other crimes, perjury,
subornation of perjury, or criminal obstruction of justice,
regardless of whether the offense took place in the course
of state or federal proceedings. Jd. at 317 (remarks of
Rep. Shellabarger).'* Opponents of this version charac-
terized the provision as an unconstitutional trampling
upon state prerogatives. Representative Arthur of Ken-
tucky complained that the section “absorbs the entire
13 Tn its original form, § 2 of Representative Shellabarger’s
bill provided that
if two or more persons shall, within the limits of any
State, band, conspire, or combine together to do any act
in violation of the rights, privileges, or immunities of
any person, to which he is entitled under the Constitution
and laws of the United States, which, committed within
a place under the sole and exclusive jurisdiction of the
United States, would, under any law of the United States
then in force, constitute the crime of either murder,
manslaughter, mayhem, robbery, assault and battery,
perjury, subornation of perjury, criminal obstruction
of leyal[] process or resistance of officers in discharge
of official dut\, arson, or larceny, and if one or more of
the parties to said conspiracy or combination shall do
any aci co erfect the object thereof, all the parties to or
engaged in said conspiracy or combination, whether prin-
cipals or accessories, shall be deemed guilty of a felony,
and upon conviction thereof shall be liable to a penalty
of not exceeding $10,000, or to imprisonment not ex-
ceeding ten years, or both, at the discretion of the court;
provided, that if any party or parties to such conspiracy
or combination shall, in furtherance of such common
design, commit the crime of murder, such party or par-
ties so guilty shall, upon conviction thereof, suffer
death....
CONG. GLOBE, 42d Cong., lst Sess. 317 (1871) (remarks of
Rep. Shellabarger) (emphasis added). See id. at app. 188
(remarks of Rep. Willard).
19a
jurisdiction of the States over their local and domestic
affairs” and called it “a sweeping usurpation of universal
criminal jurisdiction in the States.” Jd. at 366. Repre-
sentative Whitthorne of Tennessee argued that the sec-
tion effectively empowered Congress to oversee all of the
states’ functions. Jd. at 337.
Representative Shellabarger amended his bill in re-
sponse to these objections that Congress lacked constitu-
tional authority to extend federal jurisdiction as proposed
in section 2.'* The new version stated with greater
1*The amendment, among other things, replaced § 2 of the
bill with the following provision:
Sec. 2. That if two or more persons within any State
or Territory of the United States shall conspire... by
force, intimidation, or threat to deter any witness in
any court of the United States from testifying in any
matter pending in such court fully, freely, and truth-
fully, or to injure any such witness in his person or
property on account of his having so testified, or by force,
intimidation, or threat to influence the verdict of any
juror in any court of the United States, or to injure such
person in his person or property on account of any ver-
dict lawfully assented to by him, or shall conspire to-
gether for the purpose, either directly or indirectly, of
depriving any person or any class of persons of the equal
protection of the laws, or of equal privileges or immuni-
ties under the laws, or for preventing or hinderine the
constituted authorities of any State from giving or
securing to all persons within such State the equal pro-
tection of the laws, or to injure any person in his per-
son or his property for lawfully enforcing the right of
any person or class of persons to the equal protection
of the laws, each and every person so offending shall be
deemed guilty of a high crime... and if any one or more
persons engaged in such conspiracy, such as is defined
in the preceding section, shall do or cause to be done
any act in furtherance of the object of such conspiracy,
whereby any person shall be injured in his person or
property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the person
-
20a
specificity the violations brought under federal jurisdic-
tion. For offenses traditionally left to state jurisdiction,
such as obstruction of justice in state courts, the purview
of section 2 was limited to crimes committed with an
intent to deprive equal protection of the laws; as a result,
the revised section 2 confined the new federal cause of
action to violations of an explicit federal interest. For
offenses under federal jurisdiction regardless of the of-
fender’s intent, such as acts interfering with the opera-
tion of federal courts, no limitation was made.
The changes answered the objections of some members.
For example, Representative Willard explained that he
had believed the original bill “gave to the United States
courts jurisdiction of every criminal offense that could be
committed anywhere within the limits of the United
States; that it practically abolished the criminal jurisdic-
tion of the State, absorbing it all into the United States
courts.” Id. at app. 188. With the amendment’s restric-
tion of federal] jurisdiction over state crimes to violations
that were intended to deny equal protection of the laws,
Representative Willard announced he would vote in favor
of the measure. See id. (remarks of Rep. Willard). Even
those who continued their opposition conceded that Con-
gress could do as it wished to protect the federal judi-
ciary. Senator Thurman told the Senate:
I grant that as to those which are offenses against
the United States they must be taken into the Fed-
eral courts; the State courts have no jurisdiction of
them. For instance, to intimidate a witness so as to
prevent his attending a Federal court, to tamper
with a juror in a Federal court, are offenses, not
so injured or deprived of such rights and privileges may
have and maintain an action for the recovery of dam-
ages against any one or more of the persons engaged in
such conspiracy... .
Id. at 477 (remarks of Rep. Shellabarger). See note 9 supra.
2la
against the State, but offenses against the jurisdic-
tion of which must be given to the Federal
COURTS .....
Id. at app. 220.
Thus for the purpose of defusing the objections that
his bill asserted federal jurisdiction over state crimes in
excess of Congress’s constitutional powers, Representative
Shellabarger added the requirement of an intent to deny
equal protection of the laws. Inserting the equal protec-
tion language limited federal jurisdiction over state
crimes to those offenses that also injured a federal inter-
est grounded in the fourteenth amendment. No such
limitations were required in the bill with regard to pro-
tection of the federal interest in its own judicial process.
Federal jurisdiction in all cases of this nature, such as
intimidation of a witness in a federal proceeding, was
recognized by both the bill’s supporters and its opponents.
Neither injury to a federal interest nor federal authority
to remedy that injury were in doubt. Consequently, in
applying the portion of Shellabarger’s revised section 2
that is now codified as the first clause of 42 U.S.C.
$ 1985(2), the legislative history does not support re-
quiring proof of a racial or other class-based invidious
discrimination.’
'’ By the same token, the clause’s requirement that the
conspiracy consist of two or more persons “in any State or
Territory” does not exclude conspiracies conducted in the
District of Columbia. In District of Columbia v. Carter, 409
U.S. 418 (1971), the Court held that the words “State or
Territory” as used in 42 U.S.C. § 1983 do not include the
District. Nevertheless, the term “State or Territory” may
have one meaning in § 1983 and another in $ 1985(2). The
Carter Court recognized that “ ‘[w]here the subject matter
to which the words refer is not the same in the several places
where they are used, or the conditions are different, or the
scope of the legislative power exercised in one case is broader
than that exercised in another, the meaning may well vary to
meet the purposes of the law... .’” 409 U.S. at 421 (quoting
22a
V
We have concluded that either the application of col-
lateral estoppel or the lack of any legally cognizable harm
to the plaintiff precluded McCord’s legal malpractice
claims under counts one through three of his complaint.
Due to the absence of state action and any intent on the
defendants’ part to inflict a class-based, invidious discrimi-
nation, McCord cannot maintain a cause of action under
42 U.S.C. $§ 1983, 1985(2) (cl. 2), and 1985(3). We
hold that with respect to McCord’s claim under the first
clause of 42 U.S.C. § 1985(2), however, neither a show-
ing of state action nor a showing of class-based, invidious
discrimination is required. His claim therefore cannot be
discarded because these factors are not present.
Atlantic Cleaners & Dyers v. United States, 286 U.S. 427,
433 (1932) ).
The first clause of §1985(2) is readily distinguishable
from § 1983. In § 1983, “State or Territory” defines whose
officials will have liability. In Carter, the Court reasoned that
Congress did not intend the provision to extend to District
of Columbia officials because Congress already had plenary
power over officers of the District, and Congress had ample
opportunity to supervise those officials directly. In § 1985(2),
however, “State or Territory” defines what conspiracies will
be subject to the statute. We cannot presume Congress in-
tended to attack conspiracies throughout the nation except
for the District of Columbia. A rationale that would justify
esablishing the District as a conspiracy enclave is difficult
to conceive. Furthermore, Congress enacted § 1983 pursuant
to its powers under the fourteenth amendment. The Carter
Court concluded that the District’s officers were not liable
under § 1983 because the fourteenth amendment reaches only
state action. This limitation does not apply where article I
powers are employed, such as the enactment of the first clause
of § 1985(2) to protect the federal judiciary. See also Hurd
v. Hodge, 3384 U.S. 24 (1948) (“State or Territory” includes
the District of Columbia for purposes of § 1982 because the
statute is oased upon the thirteenth amendment and thus is
not limited to state action).
23a
On this record we cannot say that McCord’s invocation
of section 1985(2) is frivolous. The defendants contend
that McCord did not allege with sufficient particularity
the overt acts of a conspiracy and that McCord did not
offer proof of having been threatened or intimidated not
to testify before the grand jury or at his trial. ‘These
issues are principally factual; they are best resolved in
the first instance by the court that has been most in-
timately connected with the record. The decision of the
district court is therefore reversed and the case is re-
manded for further proceedings not inconsistent with
this opinion.
It is so ordered.
24a
WALD, Circuit Judge, concurring in part, dissenting in
part: I coneur in Parts I, III and IV of Judge Tamm’s
opinion for the court. I disagree only with footnote 6
and with the discussion in Part II of the applicability of
the doctrine of collateral estoppel in the unusual circum-
stances of this case,
While I agree with Part III of the opinion, the im-
possibility of McCord’s demonstrating injury only dis-
poses of one potential cause of action based on the facts
alleged in his complaint, that of malpractice based on
negligence. I cannot concur in the conclusion expressed
in the majority’s footnote 6 that McCord’s complaint is
so limited. It does not require an indulgent reading of
the complaint to draw from MeCord’s allegations some-
thing more than mere negligence, though much of the
language is cast in that light. McCord specifically alleges
that his lawyers “knowingly and intentionally failed. . .
to inform [him] of pertinent facts and factors,” “failed
to pursue certain avenues of investigation of matters vital
to [his] defense,” and that “at all relevant times hereto,
the interests of the Defendants were in unrevealed con-
flict with the interests of the Plaintiff |McCord].” Fur-
thermore, in Count IT, he charges that the acts arose out
of a conspiracy with the chief Watergate co-conspirators.
A claim of disloyalty or conflict of interest on the part of
an attorney is an actionable tort, recognized in our Cir-
cuit,’ and described in the RESTATEMENT (SECOND) OF
‘In Fielding v. Brebbia, 399 F.2d 1003 (D.C. Cir. 1968),
the plaintiff sued his attorney for breach of the fiduciary rela-
tionship, alleging that the aitorney had counseled him to
resign his position as president of a corporation, in order to
help another client replace him and take over the business.
In spite of the fact that in its factual] allegations supporting
the claim the complaint was conclusory and vague in the
extreme, this court held that its dismissal for failure to state
a claim was improper, noting that “this jurisdiction has been
outstandingly alert to the delicacy of the status of attorneys
25a
TorTs § 874 as a “breach of fiduciary duty.” McCord’s
allegations of disloyalty, if proved, constitute a legally
cognizable “wrong” separate and apart from the adequacy
of his representation at trial.
Furthermore, I would conclude that an allegation of
deliberate and willful disloyalty and conflict of interest
states a claim without an allegation of actual damages ;
the cause of action vindicates a legal wrong rather than
seeking to compensate injury." Of course, even assuming
who undertake to counsel a client.” Jd. at 1005. The court
further justified its hesitancy to bar the plaintiff from his
opportunity to prove his claim by noting that the confidential
relationship “presents so many opportunities for the reaping
of special benefits at the expense of the client by an attorney
so disposed.” Jd.
* The right to the undivided loyalty of one’s attorney is
“absolute” in the sense that it does not depend on one’s guilt
or innocence. That duty of loyalty is a crucial factor in the
success of our adversary system of justice. It is strongly
stated in Ethical Consideration 5-1 of the ABA Code of Pro-
fessional] Responsibility :
The professional judgment of a lawyer should be exer-
cised, within the bounds of the law, solely for the benef!
of his client and free of compromising influences and
loyalties. Neither his personal interests, the interests of
other clients, nor the desires of third persons should be
permitted to dilute his loyalty to his client.
Of particular relevance to this case is Disciplinary Rule
5-107 (B):
A lawyer shall not permit a person who ... pays him
to render legal services for another to direct or regulaic
his professional judgment in rendering such !egal
services.
* The Supreme Court has recently observed:
Common-law courts traditionally have vindicated depri-
vations of certain “absolute” rights that are not shown
to have caused actual injury through the award of a
nominal sum of money. Py making the deprivation of
26a
that on a generous reading McCord’s complaint alleges
a tort claim which is not predicated on harm, collateral
estoppel would serve as a barrier, according to the ma-
jority’s discussion of that doctrine in section II. I cannot
agree with that conclusion, given the facts of this case.
The doctrine of collateral estoppel, reduced to its es-
sence, provides that our judicial system will provide a
party with only one “full and fair opportunity” to
litigate an issue. “Collateral estoppel, like the related
doctrine of res judicata, has the dual purpose of protect-
ing litigants from the burden of relitigating an identical
issue with the same party or his privy and of promoting
judicial economy by preventing needless litigation.”
Parklane Hosiery Co. v. Shore, 489 U.S. 322, 326 (1979).
I agree with the majority that it may be perfectly
acceptable for a party to be held bound by a determina-
tion made in a prior criminal proceeding in which he or
she was the defendant. And of course, the fact that an
issue is settled in the course of a summary proceeding,
without an evidentiary hearing, does not necessarily mean
that estoppel cannot apply, so long as a final judgment
was entered on the merits. Many cases recognize the
collateral estoppel effect of a final judgment based on
insufficiency of a complaint or on summary judgment.
Nevertheless, I have difficulty with holding McCord
totally estopped from asserting all claims of disloyalty
and conflict of interest under the circumstances of this
such rights actionable for nominal damages without proot
of actual injury, the law recognizes the importance to
organized society that those rights be scrupulously ob-
served; but at the same time it remains true to the prin-
ciple that substantial damages should be awarded only
to compensate actual injury or, in the case of exemplary
or punitive damages, to deter or punish malicious depri-
vations of rights.
Carey v. Piphus, 435 U.S. 247, 266 (1978).
27a
case. And I note other courts have had similar difficulties
when faced with occasional unfair results which might be
wrought by too broad an application of the doctrine of
collateral estoppel. Some have gone so far as to describe
the doctrine as dangerous, in that it could result in “utter
disaster” as a result of a “trivial controversy,” subjecting
litigants to “extravagant hazards.” The Evergreens v.
Nunan, 141 F.2d 927, 929 (2d Cir.), cert. denied, 323
U.S. 720 (1944) (Learned Hand, J.). Traditionally,
courts relied on a variety of approaches to avoid the
necessity of holding a litigant bound when to do so would
be unfair or unwise under the circumstances.‘
*For example, some decisions define the “issue” deter-
mined in the prior proceeding very narrowly, and then con-
clude that the new issue is different, albeit only slightly. See
Brubaker v. King, 505 F.2d 534 (7th Cir. 1974) : Williams v.
Liberty, 461 F.2d 325 (7th Cir. 1972). Other courts have
held that if the prior determination decided more than was
“necessary,” the bar should not apply. Haize v. Hanover Ins.
Co., 586 F.2d 576 (8d Cir. 1976). Still other courts have
strictly applied the requirement that a question be “distinctly
put in issue and directly determined,” especially in cases
involving prior criminal proceedings. Kauffman v. Moss, 420
F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846 (1970).
Any of these theories could support a refusal to conclude
that McCord is collaterally barred here. The issue in our
prior decision was, after all, whether the assistance provided
by McCord’s counsel was so ineffective as to impair his right
to a fair trial. Here, on the other hand, the question is
whether Bailey and Alch violated the fiduciary duty owed
to their client; the effect of that alleged breach on McCord’s
conviction or on the fairness of his trial is no longer the
issue. As the Seventh Circuit has noted, “{T]he standard of
proof in a malpractice action might not be as strenuous as it
is when questioning the constitutional adequacy of counsel,”
Walker v. Kruse, 484 F.2d 802 (7th Cir. 1973). It could be
argued that this court’s conclusion on appeal that McCord’s
allegations “taken as true do not make a case for disloyalty
or conflict of interest’? was more broadly worded than it
necd have been to dispose of the case, since all the Court
28a
These analyses led to a conclusion that collateral estop-
pel could not apply because its prerequisites had not been
met. I do not believe that such a restrictive ruling is
necessary here, however. A more straightforward and
flexible analysis has recently been commended to us by
the Supreme Court. Parklane Hosiery, supra, 439 U.S.
322, struck down the last vestiges of mutuality of estop-
pel, which had provided that neither party could use a
prior judgment against the other party unless both
parties were bound by the same judgment. The Court
recognized, however, that as traditional restrictions on the
use of collateral estoppel were eased, the possibility of
unfairness increased. I would add that the possibility
of the frustration of the important public benefit of hav-
ing issues fully aired and finally decided also increases.
The solution, declared the Court, was not to impose strict
limitations on when collateral estoppel may apply, but to
grant broad discretion to determine that it should not
apply in a particular case. 7d. at 331.
I therefore turn to the question of whether an unusual
combination of circumstances in this case might justify
providing James McCord with an opportunity to prove
that he is entitled to recover damages for malpractice
from his former attorneys. There are a variety of such
circumstances in this case. First of all, there is the im-
portant factor that this case involves the sensitive yet
critically important relationship between a criminal de-
fendant and his attorneys. Ensuring the strictest in-
tegrity in discharging this trust is a matter of as much
concern to this Court as it is to defendants. Further-
more, no finder of fact has ever considered the evidence,
heard the testimony and cross-examination of witnesses,
judged the credibility of witnesses, and concluded that
needed to decide was whether McCord had alleged a “sub-
stantial” deprivation of his right to effective assistance of
counsel, which in turn affected his right to a fair trial.
29a
Gerald Alch and F. Lee Bailey were representing McCord
with undivided loyalty and protecting his interests alone.
In the interests of the courts’ duty to supervise the
practice of law in this jurisdiction, it would be wise
that such a determination be made before this chapter
of the Watergate conspiracy is finally closed.
Furthermore, one of the principal purposes of collateral
estoppel, “to protect litigants from the burden of reliti-
gating an identical issue with the same party,” Parklane
Hosiery, supra, at 326, is not a factor in this case. Alch
and Bailey have never previously been party to any suit
brought by McCord; calling them to answer in a judicial
forum for the first time works no more of an injustice
against them than a lawsuit may against any litigant.°
Mutuality may not be a requirement of collateral estoppel
any more, but lack of mutuality certainly eliminates
much of the potential unfairness of deciding not to apply
the doctrine.
When preventing unfairness to litigants is not a fac-
tor in deciding whether collateral estoppel should apply,
we are left with the goal of conserving judicial resources.
In such a case, the court’s discretion to ‘decide that the
benefits of an evidentiary hearing to finally resolve this
issue are greater than the detriment to its resources is
appropriately broader. This case should not involve the
“staggering expense and typical length” of a patent case,
for example, where collateral estoppel is particularly val-
uable. Id. at 328-329 n.10.
Finally, and particularly noted by the Supreme Court
in Parklane Hosiery as a factor to be considered in exer-
cising discretion to decide whether collateral estoppel
should apply, there were practical and procedural disad-
°In fact, because of the Court’s ruling on the civil rights
issues in this case, the defendants will in fact be called to
defend their conduct in this case.
30a
vantages suffered by McCord in presenting his claims to
this court before. He was “unable to engage in full-scale
discovery or call witnesses,” id. at 331, and indeed he
alleges that some witnesses were unwilling to talk with
him because they were still subject to criminal prosecu-
tion. He was also in the process of attempting to pursue
his appeal with new counsel, allegedly with a notable lack
of cooperation from Alch. All of these are factors which
I believe should be considered before the district court
decides to foreclose McCord’s tort claims, though I would
leave initial determination of the balance of equitable
considerations to it.®
All of this is not to say, of course, that McCord has
proved his case of disloyalty and breach of fiduciary
duty, even under this limited rationale. Rather, he has
presented a plausible sequence of events, supported at key
points by uncontested facts and affidavits from third
parties, which I believe would give rise to a cause of
action for tortious breach of fiduciary duty. Since motive,
state of mind and how much of what Alch did was done
at McCord’s bidding or with his knowledge are critical
factors, summary judgment is inappropriate, so long as
collateral estoppel does not raise an absolute bar, just as
it would be, for instance, in an antitrust or race discrimi-
nation case in which the sequence of events alleged by the
plaintiff could be either innocent behavior or carefully
6 Parklane Hosiery establishes that the applicability of the
doctrine of collateral estoppel rests within the discretion of
the court, taking into account the equitable considerations of
a particular case. A reading of the district court’s opinion
in this case reveals that it believed dismissal to be mandated,
once the prerequisites of collateral estoppel are established.
This difference in approach would not require reversal if
there were no unique equitable considerations involved in
this case, but there are very unusual circumstances involved
here which I believe should be considered before further
judicial exploration of McCord’s claims is foreclosed.
3la
disguised misconduct. Summary judgment should be used
sparingly when motive and intent play a leading role,
when proof is likely to be largely in the hands of alleged
conspirators, and when a plaintiff is faced with hostile
witnesses. Poller v. Columbia Broadcasting System, Inc.,
368 U.S. 464 (1962). The fact that McCord may have a
difficult time proving his case, however, is not relevant;
it is the litigant’s choice whether pursuit of an issue
difficult to prove and promising only meager relief is
justified.
While I am in total agreement with Judge Tamm’s
able discussion of the underpinnings of a section 1985
action, so that it appears McCord will indeed have his
day in court, I would not read his complaint so stringently
as to eliminate a potential torts claims. Nor do I believe
collateral estoppel is or should be the barrier erected by
the majority. I concur therefore in the remand of this
case for further proceedings, but would not so circum-
scribe the scope of those proceedings as has the majority.
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES W. McCORD, JR., :
Plaintiff ) Civil Action
)
v. ) No.
) 74-1888
F. LEE BAILEY, et al., )
)
Defendants )
OPINION
This is a civil action for damages brought by James
McCord alleging malpractice against individual lawyers and
their firm during his representation in the J anuary 1973
Watergate burglary trial in this court. The plaintiff, James
McCord, was convicted in that trial. Defendants are Gerald
Alch (the attorney who represented him in the trial), F. Lee
Bailey, with whom Mr. Alch was associated in the practice
of law at the time, and the firm of Bailey, Alch & Gillis. The
matter is before the Court on Cross-Motions for Summary
Judgment.
James McCord was one of five persons arrested by police
on June 17, 1972 while engaged in a burglary of the offices of
the Democratic National Committee in the Watergate
complex in Washington, D.C. In his possession and control
were documents unlawfully removed from the files of the
Democratic National Committee, burglary tools, and elec-
2b
tronic wiretapping and eavesdropping devices.
On or about July 1, 1972 plaintiff McCord retained Alch
to represent him in the criminal proceedings arising from the
break-in. After a trial in the District Court in January, 1973,
McCord was convicted by a jury on eight felony counts. The
United States Court of Appeals for the District of Columbia,
with McCord represented by other counsel, unanimously
affirmed the conviction en banc and the Supreme Court
denied certiorari. United States v. McCord, 509 F.2d 334
(D.C.Cir. 1974); 421 U.S. 930 (1975).
In his complaint filed December 27, 1974 plaintiff
complains of allegedly negligent and disloyal conduct. He
specifically alleges that 1) defendants negligently and
carelessly represent him, 2) these acts were committed
willfully, 3) there was a conspiracy among defendants and
other attorneys, individual and corporate persons and public
officials to commit the acts complained of, 4) the conspiracy
deterred McCord from testifying in grand jury proceedings,
thus obstructing justice, and 5) defendants caused him to be
denied equal protection of the Constitution and the laws of
the United States.
After extensive discovery, the defendants filed motions
for summary judgment on November 28, 1977. The plaintiff
filed a cross-motion for partial summary judgment on
January 6, 1978.
Plaintiff is prevented from raising these contentions by the
doctrine of collateral estoppel. This doctrine precludes a
second or repeated litigation of matters already judicially
determined and has at its essence the requirement that some
question of fact pending in a current dispute has been finally
determined by a court of competent jurisdiction in another
suit. See generally, Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation, 402 U.S. 313 (1971);
Laughlin v. United States, 344 F.2d 187 (D.C. Cir. 1975).
==
3b
In United States v. McCord, supra, the United States
Court of Appeals for the District of Columbia Circuit found
that Mr. McCord had not been denied effective assistance of
counsel. For purposes of argument and decision the Court
accepted as true all of McCord’s factual allegations con-
cerning his counsel’s asserted disloyalty. The Court con-
cluded that “[i]t is apparent that these allegations taken as
true do not make a case for disloyalty or conflict of interest.”
Thus, McCord’s claims were actually litigated; as stated
above, the Court accepted the factual allegations and found
them insufficient to support a claim of ineffective assistance
of counsel. 509 F.2d at 352 and n. 65,66. Those claims arise
here in a similar context. It is well established that the
doctrine of collateral estoppel applies where the prior
adjudication was at the appellate level. Goodrich y.
Supreme Court of State of South Dakota, 511 F.2d 316
(8th Cir. 1975); Thistlethwaite v. City of New York, 497
F.2d 339 (2d Cir. 1974); Rosenberg v. Martin, 478 F.2d
520 (2d Cir. 973); Williams v. United States, 334 F Supp.
669 (S.D.N.Y. 1971),
Plaintiff contends that collateral estoppel does not apply
in this case since privity does not exist between the
defendants here and the government in the previous McCord
case. The privity concept merely requires that the party
against whom a previous judgment is asserted must have
been a party to, or in privity with, a party to that previous
judgment. It is no longer required for purposes of mutuality
that the party seeking to use the prior adjudication must also
have been bound by it. Blonder-Tongue Laboratories, Inc.
v. University of Illinois Foundation, supra; Hawaiian
Paradise Park Corporation v. Becker, 314 F Supp. 1133
(D.D.C. 1970); Lober v. Moore, 417 F.2d 714 (D.C.Cir.
1969); Anderson, etal. v, Hill, et al., Civil No. 629-76 (Sup.
Ct. D.C. March 20, 1978).
4b
Prior to the Supreme Court decision in Blonder-Tongue in
1971, the United States Court of Appeals for the District of
Columbia stated in Lober.:
. . .the rule of mutuality which has frequently appeared
as something of an obstacle elsewhere, is not embedded
in the decisions of this court. On the contrary, without
so much as a hint that mutuality was a problem, we have
sometimes permitted nonparties to judgments to assert
their binding effect against those who were parties to it.
Id. at 717.
It is evident that the defendants properly invoked the
doctrine of collateral estoppel in this case. In view of the
foregoing, it is not necessary to address further issues raised
in this motion. However, the Court notes that plaintiff has
not suffered any legal injury and therefore has failed to state a
claim upon which relief can be granted. In malpractice, as in
other actions for breach of duty or obligation, a plaintiff must
establish a causal relationship between the alleged wrong
and a legally recognizable injury suffered by him. Becker v.
Colonial Parking, Inc., 409 F.2d 1130 (D.C. Cir. 1969);
Richardson v. Gregory, 281 F.2d 626 (D.C.Cir. 1960). In
Niosi v. Aiello, 69 A.2d 57 (D.C. 1949), the Court of
Appeals for the District of Columbia affirmed the trial
court’s directed verdict for the lawyer-defendant on the
ground that regardless of the merit of the malpractice
allegations, the earlier negligence action was without merit
and could not have produced a recovery for the plaintiff. Jd.
at 61-2. The Court used the following causation test:
. .lf conduct of an attorney with respect to litigation
results in no damage to his client the attorney is not
liable. . . In a suit against an attorney for negligence, the
plaintiff must prove three things in order to recover:
(1) the attorney’s employment; (2) his neglect of duty;
and (3) that such negligence resulted in and was the
proximate cause of loss to the client. Jd. at 60.
Sb
With reference to the requirement that negligence caused
loss to the client, plaintiff offers only the contention that the
“official authorization” defense would have altered the
outcome of the trial. In support, plaintiff cites United States
v. Barker, 546 F.d 940 (D.C.Cir. 1976). McCord claims
that he believed that the Watergate break-in was Officially
sanctioned by the Attorney General, that he relied on such
sanction, and that he so informed Mr. Alch. For purposes of
these motions only, the defendants do not dispute this
allegation. In effect, plaintiff is claiming that he was
mistaken in his belief that his conduct was lawful. Barker,
supra, set out a narrow exception to the general rule that
mistake of law is no defense. The Barker exception is
applicable where the defendant relied on a government
official with apparent authority, and such reliance was
objectively reasonable under the circumstances. Plaintiff
cannot meet the requirement of a reasonably objective belief
in this case. The evidence in the McCord case demonstrated
that he was not operating under a reasonable belief that the
break-in was authorized legitimately for national security
purposes. Judge MacKinnon, in affirming plaintiff's con-
viction, emphasized that plaintiff well knew that he was
employed by the Committee to Re-Elect the President and
not the government:
the evidence of appellant’s guilty on the offenses he was
tried on was so strong and persuasive that none of his
arguments, or the additional facts he refers to, would
ever Cause or justify a different result. Central to this
result is my conclusion from all the evidence in the case
that it is clear that appellant knew he was working for
the Reelection Committee and not for the government.
To my mind all his arguments come to naught when that
fact is realized.
509 F.2d at 353 (concurring opinion). Since McCord does
6b
not meet the requirements of the Barker exception, it would
have been futile to assert the official authorization defense in
plaintiff's criminal trial.
Finally, although as stated earlier, it is unnecessary to
address any further issues raised in these motions, there is no
genuine dispute of material facts in this case. Examination of
the pleadings, affidavits, depositions and exhibits reveals
that any claims of disputed material facts are unsupported.
Accordingly, the Motions for Summary Judgment filed by
defendants, Alch, Bailey, and Bailey, Alch & Gillis are
granted and plaintiff McCord’s Motion for Partial Summary
Judgment is denied.
United States District Judge
Dated: May 19, 1978
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION
JAMES McCORD, JR.,
Plaintiff :
V. : Civil Action
: No. 74-1888
F. LEE BAILEY, ET AL.
Defendants :
AMENDED COMPLAINT
[Legal malpractice, Malicious Injury,
Conspiracy, and Deprivation of Rights]
First Count
1. Plaintiff is a citizen of the State of Maryland; De-
fendants F. Lee Bailey, Gerald Alch, and Colin W. Gillis
are citizens of the State of Massachusetts, doing business, as
partners or otherwise, under the name of “Bailey, Alch &
Gillis.”” The matter in controversy, exclusive of interest and
costs, exceeds the sum of ten thousand dollars ($10,000).
2. The jurisdiction of this Court is invested by U.S.C.,
2c
Title 28, § §1331, 1332 and 1343; the action arises in part
under U.S.C., Title 42, § § 1983 and 1985; all as hereinafter
more fully appears.
3. At all times herein, Defendant F. Lee Bailey acted
individual and as agent, servant and employee of Defendant
Alch, Defendant Gillis and Defendant “Bailey, Alch &
Gillis.”
4. At all times herein, Defendant Gerald Alch acted
individually and as agent, servant and employee of De-
fendant Bailey, Defendant Gillis and Defendant “Bailey,
Alch and Gillis.”’
5. At all times herein, Defendant Colin W. Gillis acted
individually and as agent, servant and employee of De-
fendant Bailey, Defendant Alch and Defendant “Bailey,
Alch & Gillis.”
6. On or about July 1, 1972, the Plaintiff, under a
contractual agreement of employment, entered into an
attorney-client relationship with and retained Defendant F.
Lee Bailey, Defendant Gerald Alch, Defendant Colin W.
Gillis and Defendant ‘“‘Bailey, Alch & Gillis” to represent
him and defend him in the matter of United States of
America vs. James W. McCord, Jr., acriminal action in the
United States District Court for the District of Columbia,
Criminal No. 1827-72, resulting from the so-called ““Water-
gate burglary” for which the Plaintiff had been arrested on
June 17, 1972. The charges against the Plaintiff related to
the break-in and attempted burglary of the Democratic
National Committee offices at the Watergate Complex in
the District of Columbia. Plaintiff paid the Defendants or to
their agents, servants and employees, the total sum of
$25,000 in United States Currency during the period July 1,
1972, through August 1972, and thereafter paid said
Defendants, or to their agents, servants and employees, an
additional sum of $3,000. The plaintiff had a right to rely
3c
upon, and did so rely upon, Defendants properly and
competently to counsel and advise him and to defend the said
suit.
7. At all times herein, Plaintiff acted in a careful, non-
negligent manner and was free of contributory negligence.
8. The Defendants, among other things, carelessly and
negligently represented the Plaintiff in that they revealed
confidential communications to third persons; in that they
failed to exercise that degree of skill and learning normally
applied by attorneys at law who practice in this geographical
area; in that they knowingly and intentionally failed or
refused to inform the Plaintiff of pertinent facts and factors
affecting his legal position, although under a duty to do so; in
that they failed to pursue certain avenues of investigation of
matters vital to Plaintiff's defense; in that they refused and
failed to follow the reasonable and proper requests of the
Plaintiff concerning his defense; in that, at all relevant times
hereto, the interests of the Defendants were in unrevealed
conflict with the interest of the Plaintiff, which adversely
affected the proper conduct of his defense: and in that the
Defendants’ general course of action, turning over to the
prosecution and other parties and counsel, information and
evidence previously in the possession of the Plaintiff was in
derogation of Plaintiff's common law rights and his rights
under the Fourth, Fifth, and Sixth Amendments to the
United States Constitution, all to his detriment and damage.
9. As adirect and proximate result of the aforesaid and of
the Defendant’s conduct in failing to exercise ordinary care,
by utilizing that degree of skill and learning normally used by
attorneys at law who practice in this geographical! area, the
Plaintiff has been greatly damaged and otherwise injured in
that, among other things, the Plaintiff suffered and will
continue to suffer; loss of liberty; in that the Plaintiff suffered
and will continue to suffer, loss of reputation: in that the
4c
Plaintiff suffered and will continue to suffer, substantial
monetary losses; and in that the Plaintiff suffered and will
continue to suffer, loss of earnings and earning capacity; all
directly and proximately caused by the aforesaid negligence
and the intentional omissions and commissions of the said
Defendants.
Second Count
10. Plaintiff reaffirms and incorporates herein all rele-
vant allegations in Paragraphs 1 through 9, supra.
11. Defendants and each of them did the acts complained
of, and failed to do required acts and fulfill rightful obliga-
tions, as specified and otherwise, recklessly, willfully, fully
knowing and forseeing the consequential damages to
plaintiff, and with intent to injure plaintiff.
Third Count
12. Plaintiff reaffirms and incorporates herein all rele-
vant allegations in Paragraphs | through 11, supra.
13. Defendants and each of them conspired with other
attorneys, individual and corporate persons, and public
officials, to do the acts complained of and to refrain from
doing required acts and fulfilling rightful obligations, as
specified and otherwise.
Fourth Count
14. Plaintiff reaffirms and incorporates herein all rele-
vant allegations in Paragraphs | through 13, supra.
15. Defendants and each of them, in the District of
Columbia and elsewhere, singly and in conspiracy with one
another and with others, acting in private capacities and
Sc
under color of law, deterred Plaintiff from testifying in grand
jury and court proceedings; impeded and obstructed the due
course of justice in matters affecting Plaintiff: and caused
Plaintiff to be denied equal protection of the Constitution
and laws of the United States.
WHEREFORE, Plaintiff demands judgment against De-
fendants jointly and severally in the amount of five million
dollars ($5,000,000) in compensatory damages and five
million dollars ($5,000,000) in punitive damages, together
with interest and costs.
/s/ Rufus King
Rufus King
808 Woodward Bidg.
Washington, DC 20005
(202) 638-4117
Attorney for Plaintiff
/s/ Rufus King, III
Rufus King,
Of counsel
JURY DEMAND
Plaintiff reaffirms his demand for a jury trial on all issues
therein.
/s/ Rufus King
Rufus King
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) NO. 78-3612
)
Vv ) DC No.
) CR-74-364
)
PATRICIA CAMPBELL HEARST, ) OPINION
)
Defendant-Appellant. )
)
Appeal from the United States District Court
for the Northern District of California
William H. Orrick, Jr., District Judge, Presiding
Argued and submitted March 10, 1980
Before: CHOY and GOODWIN, Circuit Judges, and
THOMPSON, * District Judge.
CHOY, Circuit Judge:
Hearst appeals the district court’s denial, without
discovery or a hearing, of her motion for “habeas corpus,”
28 U.S.C. §2255. We affirm in part and vacate in part, and
remand for further proceedings.
. *The Honorable Bruce R. Thompson, Senior United States District
Judge for the District of Nevada, sitting by designation.
I. Introduction
Hearst was arrested in September 1975 for bank robbery.
Soon after, she made incriminating statements, which were
captured by jail officials on the ‘““Tobin tape,” in a jailhouse
interview with her friend Tobin. F. Lee Bailey and his
associate J. Albert Johnson entered the case on October 2 as
Hearst’s counsel and prepared a defense based on a coercion
theory. They did not move for a change of venue or for a
continuance on the ground of pretrial publicity, choosing
instead to rely on the voir dire of the prospective jurors. Their
motion to suppress the Tobin tape was denied. Trial began in
February 1976. Bailey put Hearst on the witness stand; she
took the Fifth Amendment in the presence of the jury. Hearst
was convicted on March 20. Her motions for a new trial were
denied. She took an unsuccessful appeal, and certiorari was
denied. 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435
U.S. 1000 91978). Bailey and Johnson were fired, and
through present counsel Hearst filed a § 2255 motion, which
Judge Orrick denied without a hearing. 466 F. Supp. 1068
(N.D. Cal. 1978). While the appeal from this ruling was
pending, President Carter commuted Hearst’s sentence.
Most of the above is well known, for Hearst’s case was a
cause celebre. We now know, in addition, that during the
course of the proceedings Bailey contracted to write a book
about the trial, thus raising questions of potential or actual
conflict of interest.
Bailey has admitted by affidavit that
‘Although Hearst is no longer in federal custody, this case is not moot.
Courtney v. United States, 486 F.2d 1108 (9th Cir. 1973). The district
court on remand will have the power under § 2255 to vacate Hearst’s
conviction, if it finds such relief appropriate.
3d
In February of 1976, I had received several offers to
publish a book concerning the Hearst trial. A contract
was eventually signed with G.P. Putnam, however, that
contract was made contingent upon Ms. Hearst agree-
ing not to write about her experiences for a period of
eighteen months subsequent to the publication. I indi-
cated to Putnam that I would not submit any agreement
on this subject to Ms. Hearst while the matter was still
i being litigated and the contract thus remained con-
tingent upon Ms. Hearst’s approval.
On March 22, 1976, Hearst signed the following covenant:
March 22, 1976
Putnam/Berkley Publishing Corp.
New York, New York
Gentlemen:
I understand that F. Lee Bailey is writing a book
about my trial and life story as it pertains to the trial for
which he will contract with you for publication in the
United States and Canada.
As an inducement for you to publish this book, I
hereby agree not to publish any account of my experi-
ences in book, magazine, or any other form, prior to 18
months from your initial (hardcover) publication of Mr.
Bailey’s book, and I further agree to cooperate fully and
exclusively with Mr. Bailey in his preparation and
writing of the book in any manner he requires.
Very truly yours,
/s/ Patricia C. Hearst
Patricia Campbell Hearst
PCH.sm
4d
Randolph Hearst, appellant’s father, declared by affidavit
that in September 1975 he discussed with Bailey the
possibility of a book, and did not rule out the possibility. Mr.
Hearst declared that he did not consider book rights to be
part of the fee arrangement for the trial. He declared further
that ‘“‘after .. . trial’’ Johnson told him that Bailey wanted to
write a book about Ms. Hearst’s trial, that this would be part
of the fee arrangement for the appeal, and that Ms. Hearst
would have to sign a covenant not to publish anything for
eighteen months after the trial. Mr. Hearst, not knowing that
Bailey had negotiated or contracted during the trial to write a
book, told Johnson to tell Ms. Hearst that he had no
objection to the arrangement Johnson had described.
Ms. Hearst declared by affidavit that before trial Johnson
told her that Bailey would write a book about her, that the
book rights were part of the fee arrangement her parents had
made, that she had to agree to the arrangement but was not to
discuss it, and that Johnson would someday ask her to sign a
paper relating to it. She further declared that on March 22,
two days after her conviction, Johnson brought her the
covenant and said, ‘“‘Remember the paper I would be
bringing you to sign one day; well this is it’; that she did not
have independent counsel, feel a sense of free will, or
understand the effect of the covenant; and that it was never
her desire that Bailey write a book about her or the trial.’
"Hearst alleged that Bailey’s book contract called for a $70,000
advance and a total of $225,000; that the advance was paid; that Bailey
had a ghostwriter write “The Trial of Patty Hearst’; and that the
publisher rejected the manuscript. Hearst declared by affidavit that on
August 1, 1977, Bailey wrote her that since the book had not been
published yet, there was no need for the covenant and she could consider
it null and void.
Sd
II. Hearst’s Contentions
Hearst makes the following contentions on appeal:
A. Her Sixth Amendment right to the assistance of
counsel was violated when Bailey pursued his own interest in
publication rights, rather than her interest in acquittal, by
(1) failing to seek a continuance; (2) failing to seek a change
of venue; (3) putting Hearst on the witness stand; (4) failing
to investigate the Tobin tape issue; and (5) failing to
investigate the possibility that involuntary ingestion of
hallucinogens overcame Hearst’s will.
B. Aside from any conflict of interest, Bailey’s failure to
pursue the defense based on the involuntary ingestion of
hallucinogens was incompetence that violated the Sixth
Amendment.
C. Aside from any conflict of interest, Bailey’s failure to
succeed in suppressing the Tobin tape was incompetence
that violated the Sixth Amendment.
D. In any event, the Constitution forbade the introduc-
tion of the Tobin tape.
E. Because pretrial publicity made a fair trial impossible,
the conviction was obtained without due process of law.
We vacate and remand for hearings under §2255 on
contentions (A)(1), (2), and (3). We affirm the district
court’s other rulings.
A. Conflict of Interest
Hearst claims that Bailey’s book contract created a
conflict of interest that deprived her of her Sixth Amendment
right to the assistance of counsel. This alleged conflict was
not total, for surely the salability of Bailey’s book would
have been enhanced had he gained an acquittal for Hearst.
Nonetheless, Hearst charges that Bailey (1) failed to seek a
continuance, so public interest would not cool and com-
6d
peting authors would not get the jump on him; (2) failed to
seek a change of venue, because publicity would be maxi-
mized by a trial in San Francisco, a media center and the
home of the Hearst family; and (3) put her on the witness
stand, so her story would go on the public record and he
would not be constrained by the attorney-client confi-
dentiality rules. These decisions prejudiced Hearst, she
says, because the came came to trial in the full heat of
prejudicial publicity, and she was forced to plead the Fifth
forty-two times in the presence of the jury.
The Government and Baily denied that Bailey’s book
interest played any role in these tactical decisions, and
advanced plausible reasons why he made those decisions.
The district court denied relief, on the grounds that
counsel’s reasonable tactical decisions could not be
challenged, and that Hearst had not shown actual prejudice.
466 F. Supp. at 1075-76, 1083, 1087.
We hold that the district court erred in denying Hearst a
hearing on these issues. >On remand, the district court should
conduct a hearing and apply to the facts the law recently laid
down by the Supreme Court in Cuylerv. Sullivan, U.S.
___ , 48 U.S.L.W. 4517 (1980).
1. The Cuyler v. Sullivan Test
In Cuyler v. Sullivan, a decision of which the district court
did not have the benefit, the Supreme Court considered a
claim that retained counsel’s conflict of interest violated the
client’s Sixth Amendment right to the assistance of counsel.
Sullivan sought federal habeas corpus relief from a state
’Hearst’s implausible arguments that Bailey’s book conflict ham-
strung his investigation of the Tobin tape issue and influenced him not to
pursue a defense based on her involuntary ingestion of hallucinogens
were not raised below; we will not consider them on appeal.
7d
conviction, whereas Hearst’s conviction was federal; Sul-
livan’s lawyer’s conflict was based on multiple representa-
tion, whereas Hearst’s was based on private financial
interests. These differences are immaterial. We consider the
rules laid down in Sullivan to be directly applicable to the
present case, and they should govern the case on remand.
The Sullivan Court held that counsel’s mere potential
conflict of interest does not entitle a convict to relief. “In
order to establish a violation of the Sixth Amendment, a
defendant who raised no objection at trial must demonstrate
that an actual conflict of interest adversely affected his
lawyer’s performance.” Jd. at 4521. But “a defendant who
Shows that a conflict of interest actually affected the
adequacy of his representation need not demonstrate
prejudice in order to gain relief.” Jd.
We read Sullivan to define an actual, as opposed to a
potential, conflict as one which in fact adversely affects the
lawyer’s performance. But the requirement that the pe-
titioner show this adverse effect is not the same as the
requirement of Cooper v. Fitzharris, 586 F.2d 1325 (9th
Cir. 1978), cert. denied, 440 U.S. 974 (1979), that the
petitioner show that counsel’s incompetent assistance re-
Sulted in actual prejudice. For example, overwhelming
evidence of guilt might (as in Cooper itself) make almost
impossible a showing that a relatively minor error resulted in
actual prejudice. But such evidence would be completely
irrelevant to an inquiry whether the same error, if caused by
an actual conflict of interest, showed an adverse effect on
counsel’s performance.
2. Requirement of a Hearing
When a § 2255 motion is made, “‘[u]nless the motion and
the files and records of the case conclusively show that the
8d
prisoner is entitled to no relief, the court shall... grant a
prompt hearing thereon.” 28 U.S.C. §2255. The standard is
essentially whether the movant has “‘stated a claim on which
relief could be granted,” Moore v. United States, 571 F.2d
179, 184 (3rd Cir. 1978) — or, where affidavits have been
submitted, whether summary judgment for the Government
is proper. See also Fed. R. Civ. P. 12(b), 56. Under the
standard established by the statute and the cases interpreting
it, the district court should not have denied Hearst’s conflict-
based claims without a hearing.
The Ninth Circuit’s rule is that “merely conclusionary
statements in a §2255 motion are not enough to require a
hearing.” Wagner v. United States, 418 F.2d 618, 621 (9th
Cir. 1969). This does not, however, ““mean that the moving
party must detail his evidence. It means only that he must
make factual allegations, as [movant] has done.” Jd.
On the other hand, in certain cases the “factual allega-
tions” are so “‘palpably incredible,”’ so “‘patently frivolous or
false,” see Blackledge v. Allison, 431 U.S. 63, 76 (1977),
that it is clear the movant is not entitled to relief or even toa
hearing. ““The court may appraise a petition by what is
reasonably credible.’’ Cassidy v. United States, 457 F.2d
813 (9th Cir.) (per curiam), cert. denied, 409 U.S. 1026
(1972).
These principles are well illustrated by Machibroda v.
United States, 368 U.S. 487 (1962). There, the movant’s
§ 2255 motion and affidavit made detailed factual allega-
tions, which were countered by an affidavit introduced by the
Government. The district judge concluded without a hearing
that the allegations were false, and denied relief. The
Supreme Court vacated and remanded, saying,
This was not a case where the issues raised by the
motion were conclusively determined either by the
motion itself or by the ‘‘files and records”’ in the trial
9d
court. The factual allegations contained in the pe-
titioner’s motion and affidavit, and put in issue by the
affidavit filed with the Government’s response, related
primarily to purported occurrences outside the court-
room and upon which the record could, therefore, cast
no real light. Nor were the circumstances alleged of a
kind that the District Judge could completely resolve by
drawing upon his own personal knowledge or recol-
lection.
We cannot agree with the Government that a hearing
in this case would be futile because of the apparent lack
of any eyewitnesses to the occurrences alleged...
“. .. The Government’s contention that his allegations
are improbable and unbelievable cannot serve to deny
him an opportunity to Support them by evidence. On
this record it is his right to be heard.” [Citation. ]
There will always be marginal cases, and this case is
not far from the line. But the specific and deiailed
factual assertions of the petitioner, while improbable,
cannot at this juncture be said to be incredible. If the
allegations are true, the petitioner is clearly entitled to
relief. Accordingly, we think the function of 28 U.S.C.
§ 2255 can be served in this case only by affording the
hearing which its provisions require.
Id. at 494-96.
In this case, the district court could not properly rely on
the apparent regularity of the record and of Bailey’s
“tactical” decisions, 466 F. Supp. at 1075, 1083, to
“conclusively show” that Hearst was entitled to no relief,
because her motion was based on a circumstance, not
appearing on the record, that allegedly affected Bailey’s
judgment. See Sanders v. United States, 373 U.S. 1, 19-20
(1963) (hearing must be granted on §2255 claim that
apparently regular guilty plea was invalid because defendant
was under influence of narcotics). Bailey’s potential conflict
10d
of interest is virtually admitted, and Hearst has alleged an
actual conflict and adverse effect in sufficient and not
implausible detail.
We conclude that Hearst is entitled to a hearing on the
truth of her allegations.‘
3. Discovery
Hearst alleged that Bailey was negotiating with publishers
before the trial, when certain challenged decisions were
made; she offered to prove it through depositions and
discovery from Bailey’s publisher and its editor-in-chief.
In §2255 cases, “‘A party may invoke the processes of
discovery . . . if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants
leave to do so, but not otherwise.” Rule 6 (following
$2255); see Argo v. United States, 473 F.2d 1315, 1317
(9th Cir.), cert. denied, 412 U.S. 906 (1973). The district
court, because of its belief that Hearst’s § 2255 motion was
‘The Supreme Court has noted that although the standards for
disposing without a hearing of habeas corpus petitions by state and
federal prisoners are theoretically ‘“‘exactly commensurate,” in practice
a motion under §2255 is ordinarily presented to the judge who
presided at the original conviction and sentencing of the prisoner.
In some cases, the judge’s recollection of the events at issue may
enable him summarily to dismiss a § 2255 motion, even though he
could not similarly dispose of a habeas corpus petition challenging
a state conviction but presenting identical allegations. . . . To this
extent, the standard may be administered in a somewhat different
fashion.
Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).
Since Judge Orrick’s decision to deny a hearing was based on his
reading of the trial record, however, not on his personal recollection of
the trial, the standard must be administered strictly here. Although Judge
Orrick presided at Hearst’s sentencing and considered the §2255
motion which is the subject of this appeal, the late Judge Oliver J. Carter
presided at Hearst’s trial.
11d
meritless, refused to allow Hearst to take discovery under
Rule 6. On remand, the district court should again consider
the question of discovery.
B. Ingestion of Drugs — Attorney Incompetence
The district court correctly found that Hearst had no
possibility of demonstrating that Bailey’s representation was
incompetent to the extent that he failed to investigate fully
the possibility that involuntary ingestion of hallucinogens
overcame Hearst’s will. 466 F. Supp. at 1086-87. The only
evidence of this ingestion, besides Hearst’s Vague assertion
that she had experienced drug-type sensations, was a double
hearsay account of Donald DeFreeze’s unfocused statement
of future possibilities.* No psychiatric report suggested that
hallucinogens had affected Hearst’s behavior, and several
psychiatrists told Bailey that the symptoms she reported
could have been a normal reaction to light after one has been
blindfolded. If this drug defense had been unsuccessfully
proffered the credibility of Hearst’s entire defense might
have been destroyed. Bailey acted well within the scope of
“reasonably competent and effective representation,”
Cooper v. Fitzharris, 586 F.2d at 1327, when he devoted his
energies to other aspects of Hearst’s defense. Even in the
unlikely event that this decision was a mistake, there was stil!
no constitutional dereliction. See id. at 1330.
C. The Tobin Tape — Attorney Incompetence
As the district court found, the record demonstrates that
Bailey and his co-counsel made satisfactory, if not brilliant,
‘DeFreeze was a leader of the Symbionese Liberation Army, the
group which kidnapped Hearst.
12d
investigation and presentation of the facts and law that might
have resulted in the suppression of the Tobin tape. 466 F.
Supp. at 1078, 1079 n.17, 1086. Thus the court did not err
by ruling, without a hearing, that Hearst could not demon-
strate that Bailey’s representation on this issue fell below the
‘reasonably competent and effective”’ level. See 586 F.2d at
1327.
D. The Tobin Tape — Fourth Amendment
Hearst claims that the Tobin tape was the fruit of a Fourth
Amendment violation and should have been suppressed.
The Government provided her a full and fair opportunity to
raise this issue on direct appeal; therefore, it cannot be raised
on collateral review. Tisnado v. United States, 547 F.2d
452,456 (9th Cir. 1976); see Stone v. Powell, 428 U.S. 465,
494 (1976). If the provided opportunity has been
squandered due to defense counsel’s incompetence or
misconduct, a convict’s only option on collateral review is a
Sixth Amendment claim based on inadequate assistance of
counsel. See Canary v. Bland, 583 F.2d 887, 890 (6th Cir.
1978). We held in Part II.C, supra, that Hearst received
adequate assistance of counsel on the Tobin tape issue.
E. Pretrial Publicity — Due Process
Hearst claims that the huge amount of prejudicial pretrial
publicity made it impossible for her to receive the fair trial
guaranteed by the Fifth Amendment’s Due Process Clause.
Bailey did not make this claim at trial or on direct appeal, nor
did he move for a continuance or change of venue to alleviate
the problem; instead, he relied on the voir dire to obtain
unbiased jurors. The § 2255 court held that this constituted a
waiver of Hearst’s due process/fair trial objection, and that
no “cause”’ was alleged or “ prejudice’’ shown, see Wain-
13d
wright v. Sykes, 433 U.S.72 (1977), tojustify permitting the
waived objection to be litigated collaterally. 466 F. Supp. at
1073-76.
In federal criminal cases, all defenses and objections
based on defects in the institution of the prosecution or non-
jurisdictional defects in the indictment or information must
be raised before trial, or else are waived ( although ‘“‘the court
for cause shown may grant relief from the waiver’’). Fed. R.
Crim. P. 12(b)(1)-(2), (f). A waived challenge of the grand
jury cannot be litigated collaterally. Davis v. United States,
411 U.S. 233, 242 (1973). Challenges of the petit jury are
treated the same as challenges of the grand jury. Shotwell
Manufacturing Co. v. United States, 371 U.S. 341, 362
(1963). It follows that Hearst’s due process/fair trial
objection was waived.
Although Hearst did not explicitly identify Bailey’s con-
flict of interest as the “‘cause”’ for the waiver, her allegations
that this conflict induced Bailey to fail to move for a
continuance or a change of venue sufficiently raised a claim
of Sykes and Rule 12(f) ‘‘cause” before the § 2255 district
court. But we note that Hearst’s allegations in contentions
(A)(1) and (2), that Bailey’s failure to make these motions
violated her Sixth Amendment rights, are substantively
identical to her allegation of “cause.” If she can establish
actual conflict of interest and a Sixth Amendment violation,
she establishes “‘cause’’; by the same token, she cannot show
“cause” without showing an actual conflict.
Once Hearst established an actual conflict of interest with
adverse effect on her counsel’s performance, she would be
entitled to relief on contentions (A)(1) and (2) even if no
prejudice to her chance of acquittal at trial appeared.
Therefore, if Hearst is entitled to relief on contentions (A)(1)
14d
and (2) she will gain the relief she seeks through contention
(E); yet if she is not entitled to relief on the former
contentions, she could not be entitled to relief on the latter
contention (because she would not have established
‘‘cause’’). Since the district court’s decision on contentions
(A)(1) and (2), which we have remanded for a hearing, will
effectively moot contention (E), we see no reason to disturb
the district court’s decision on that issue.
III. Attorney Discipline
A. Standards of Conduct
Under Federal Rule of Appellate Procedure 46, a Court of
Appeals can discipline any attorney who practices before it
for “conducting unbecoming a member of the bar.” See In re
Chandler, 450 F.2d 813 (9th Cir. 1971). This language is
not unconstitutionally vague. It refers to the legal pro-
fession’s “‘code of behavior’ and “‘lore,” of which all
attorneys are charged with knowledge and of which the
American Bar Association Code of Professional Responsi-
bility (ABA CPR) is an illustration. Jn re Bithoney, 486
F.2d 319, 324 & n.7 (5th Cir. 1973). In addition, members
pro hac vice of the bar of the United States District Court for
the Northern District of California are charged with
knowledge of the disciplinary rules of the State Bar of
California, as well as those of their home jurisdiction.
B. Bailey’s Conduct
The allegations and admissions in the record of the present
case raise serious questions as to whether Bailey and, to the
extent of his participation, Johnson have been guilty of
conduct unbecoming members of the bar.
1Sd
1. The Book Contract
Bailey’s book contract created a potential conflict of
interest; this case tests whether it ripened into an actual
conflict of interest. Therefore, Bailey may have violated
ABA CPR Disciplinary Rule 5-101(A), which reads:
Except with the consent of his client after full
disclosure, a lawyer shall not accept employment if the
exercise of his professional judgment on behalf of his
client will be or reasonably may be affected by his own
financial, business, property, or personal interests.
The obvious reason for this rule is well expressed in ABA
CPR Ethical Consideration 5-1:
The professional judgment of a lawyer should be
exercised, within the bounds of the law, solely for the
benefit of his client and free of compromising influences
and loyalties. Neither his personal interests, the in-
terests of other clients, nor the desires of third persons
Should be permitted to dilute his loyalty to his client.
Bailey’s book contract might not fall within ABA CPR
Disciplinary Rule 5-104(b), see infra, because the contract
itself was not an acquisition from the client of an interest in
publication rights. Nonetheless, Rule 5-104(B) recognizes
the dangers inherent in simultaneous lawyering and
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authoring.® Moreover, all courts before which the issue has
been raised have disapproved the practice of attorneys
arranging to benefit from the publication of their clients’
stories. See Ray v. Rose, 491 F.2d 285, 289 (6th Cir.), cert.
denied, 417 U.S. 936 (1974); Ray v. Rose, 535 F.2d 966,
974 (6th Cir.), cert. denied, 429 U.S. 1026 (1976);
Wojtowicz v. United States, 550 F.2d 786, 793 (2d Cir.),
cert. denied, 431 U.S. 972 (1977); People v. Corona, 80
Cal. App. 3d 684, 720-21, 727, 145 Cal. Rptr. 894, 915-16,
920 (1978); Maxwell v. Superior Court, 101 Cal. App. 3d
341, ; ; , 161 Cal. Rptr. 849, 854-56, 861
(1980).
In light of Rule 5-101(A), Bailey’s decision to enter into a
book contract during the course of the trial was most
unfortunate. Potential and actual conflicts of interest always
bring disrepute upon the bar, the court, and the law. They do
so to an even greater degree when the case is a cause celebre
This recognition becomes even more explicit in Rule 1.9(d) of the
Discussion Draft of the ABA Model Rules of Professional Conduct,
reprinted in 48 U.S.L.W., No. 32, at 8 (Feb. 19, 1980):
Prior to the conclusion of representation of a client, a lawyer
shail not make or negotiate an agreement giving the lawyer literary
rights to a matter arising from the representation.
The Comment to that proposed Rule reads in part:
An agreement by which a lawyer acquires literary rights
concerning the subject matter of the representation involves
incompatible standards for the lawyer’s performance, one being
effectiveness in representing the client and the other being
performance that has literary value. Even after conclusion of
representation, a lawyer may make use of information about a
client in an account of professional experience oily to the extent
permitted by Rule 1.7.
The proposed Rule, if in effect at the time, would explicitly have
prohibited Bailey’s book contract.
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and the attorney has the reputation of being an outstanding
lawyer. Moreover, Bailey is in no position to claim that the
book contract was necessary to finance his fee.
2. The Covenant
ABA CPR Disciplinary Rule 5-104(B) reads:
Prior to conclusion of all aspects of the matter giving
rise to his employment, a lawyer shall not enter into any
arrangement or understanding with a client or a
prospective client by which he acquires an interest in
publication rights with respect to the subject matter of
his employment or proposed employment.
Even though Bailey’s book contract itself technically
might not violate this Rule, Hearst’s March 22 covenant to
cooperate exclusively with Bailey and not to publish on her
own was obtained pursuant to his representation and, we
believe, constituted an “‘interest in publication rights.”
Although Hearst’s trial had ended on March 22, Bailey’s
representation of Hearst had not. He continued to represent
her through a motion for new trial, a second motion for new
trial, sentencing, a direct appeal to this Court, a petition for
rehearing en banc, a petition for certiorari, a motion to
vacate a concurrent sentence, and a Rule 35 motion to
reduce sentence. Thus, Bailey was apparently in violation of
ABA CPR Disciplinary Rule 5-104(B) from March aay
1976, onward.
3. The Fraud on the Client
Bailey admits the book contraci; the covenant is in the
record. The allegations suggesting fraud are not so well
established. However, if proved, they would tend to show
that Bailey and Johnson misled Randolph Hearst and
appellant regarding the finality of the agreement for a book,
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the subject of the book, the duration of the covenant, the
application of the proceeds, and appellant’s obligation to
sign the covenant. The allegations regarding the background,
manner and timing of the presentation of the covenant to
appellant for signing indicate overreacing.
If all this is true, Bailey and Johnson may have violated
ABA CPR Disciplinary Rule 1-102(A)(4):
A lawyer shall not engage in conduct involving dis-
honesty, fraud, deceit, or misrepresentation.
Other Disciplinary Rules might also be involved. Attention
shoul also be directed to California Rule of Professional
Conduct 5-101:
A member of the State Bar shall not enter into a
business transaction with a client or knowingly acquire
an ownership, possessory, security or other pecuniary
interest adverse to aclient unless (1) the transaction and
terms in which the member of the State Bar acquires the
interest are fair and reasonable to the client and are fully
disclosed and transmitted in writing to the client in
manner and terms which should have reasonably been
understood by the client, (2) the client is given a
reasonable opportunity to seek the advice of inde-
pendent counsel of the client’s choice on the trans-
action, and (3) the client consents in writing thereto.
C. Disciplinary Proceedings
We suggest that the district court, on remand, might find it
advisable to issue to Bailey (and perhaps to Johnson as well)
an order to show cause why he should not be disciplined, on
the grounds noted above, in his capacity as a member pro
hac vice of the bar of the United States District Court for the
Northern District of California.’
"We choose not, at this time, to issue to Bailey an order to show cause
why he should not be disciplined by the United States Court of Appeals
for the Ninth Circuit. We will await the findings made in the district
court’s disciplinary proceedings, and do what appears necessary there-
after.
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IV. Conclusion
As to Hearst’s contentions that Bailey suffered from an
actual conflict of interest that adversely affected his per-
formance, in that it caused him to fail to seek a
continuance, to fail to seek a change of venue, and to put
Hearst on the witness stand, the district court’s denial of the
motion for relief is VACATED, and the case RE-
MANDED for reconsideration of Hearst’s discovery re-
quest, and for a hearing.
As to all other matters, the judgment of the district court is
AFFIRMED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.