Petition — Hunt v. Bittman

| B1-62 b@ —_ |Mtce-sureme tou, u

FILED

No.

JUL 7 1981

ALEXANDER L. STEYAS

CLERK

IN THE ie

Supreme Court of the Anited States

OCTOBER TERM, 1981

E. HOWARD HUNT, JR.,

Petitioner,

WILLIAM O. BITTMAN et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

RUFUS KING

RUFUS KING, III

KING & NEWMYER

910 - 17th Street, N.W.

Washington, D.C. 20006

(202) 466-5440

Attorneys for Petitioner

Washington, 0.C. ¢ CLB PUBLISHERS « LAW PRINTING CO. © (202) 393-0625

(i)

QUESTION PRESENTED FOR REVIEW

Are defendants in criminal cases whose counsel are

derelict remediless, or remediless unless acquitted—or are

their malpractice claims fairly subject to special restrictive

rules not applied to litigants in any other category?

(ii)

PARTIES IN THIS PROCEEDING

E. Howard Hunt, Jr. is plaintiff, appellant, and petitioner

for certiorari herein; defendant-appellee-respondents are

Seymour S. Mintz, George E. Monk, Edward A.

McDermott, Frank F. Roberson, Merle Thorpe, Jr., Lee

Loevinger, William T. Plumb, Jr., C. Frank Reifsnyder,

George W. Wise, Robert K. Eifler, Edgar W. Holtz, John P.

Arness, Francis L. Casey, Jr., E. Barrett Prettyman, Jr.,

Arnold C. Johnson, A. Linwood Holton, Jr., John J. Ross,

Howard F. Roycroft, Robert H. Kapp, Sherwin J. Markman,

Robert J. Elliott, Jay E. Ricks, Robert M. Jeffers, Dennis J.

Lehr, Arthur J. Rothkopf, Kevin P. Charles, Jerome N.

Sonosky, James A. Hourihan, Gerald E. Gilbert, Austin S.

Mittler, Vincent H. Cohen, Howard R. Moskof, George U.

Carneal, Gary L. Christensen, Alfred T. Spada, Bob Glen

Odle, Richard S. Rodin, Stuart Philip Ross, Richard J. M.

Poulson, Peter W. Tredick, Anthony S. Harrington, Alfred

John Dougherty, Peter F. Rousselot, James J. Rosenhauer,

Sara-Ann Determan, Joseph M. Hassett, Robert E. Mont-

gomery, Jr., Joe Chartoff, David J. Hensler, Eric A. Von

Salzen, George W. Miller, Alphonso A. Christian, IT, Martin

_ Michaelson and M. Langhorne Keith As General Partners of

Hogan & Hartson.

(iii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........cccecccccccececees i

EIOT COE DART eee s sth eee e BR otc sGbUA does consews ii

TABLE OF AUTHORITTES............csceseseccseeees iv

OPINIONS DELIVERED BELOW .............0eeeeeees 1

JURISDICTIONAL STATEMENT ............eceeeeeees 2

BE Py ee RUE T EEE bin cde chee cccccetcctesecvecdsece 2

STATEMENT OF THE CASE ....ccccccrcsccccsccceccecs 2

AETIRIIEE b's bs vee occ¥no0.2sbeen regen elidwedgrn es vaaiis 5

CRI coh vcucebeswandedeeddwesepibaniieresecenis 6

APPENDIX

Opinion, Hunt v. Bittman et al., 482 F. Supp. 1017

(United States District Court for the District of

I NOI Gh a's id sia's 06-006 bAWADN OER De vee kn eense la

Judgment Notation, ibid., No. 80-1166 (decided

March 11, 1981, United States Court of Appeals

for the District of Columbia Circuit) ............5..e00es lb

TABLE OF AUTHORITIES

Cases Page

Bradshaw v. Pardee,

144 Cal.Repts. 246 (Cal.App. 1978).........00eeeeeees +5

Burke v. Washington Hospital Center,

293 F.Supp. 1328 (D.S.D.C. 1968)... .cccsiccscccsceces 4

Burns v. Bell,

409 A.2d 614 (D.C.App. 1979)......... cc cece cece eeeees 4

Fitzgerald v. Seamans,

180 U.S.App.D.C. 75, 553 F.2d 220 (1977) .........565. 4

(iv)

Fort Myers Seafood Packers, Inc. v. Steptoe & Johnson,

127 U.S.App.D.C. 93, 381 F.2d 261 (1967)

COTES EE BE SUES ai blots vine ewesicee 6:0 openers ete

Grisby v. Sterling Drugs, Inc.,

428 F.Supp. 242 (D.C.D.C. 1975), aff'd 543

SE AEE Cis Uuitew ada s babes eiveUedbadsvede'emnas

Hernandez y. Koch,

GE FE, SETA. Ce AGO) oie cisiccccvcvevctccvsss

Hunt v. Bittman,

482 F.Supp. 1017 (D.C.D.C. 1980).......... cece eeeees

Jones v. Rogers Memorial Hospital,

143 U.S.App.D.C. 75, 553 F.2d 220 (1977) ..........06.

McCord v. Bailey,

DUO PEEP APO ccccncccccsisescveceneses

Niosi v. Aiello,

69 A.2d 57 (D.C.Mun.App. 1949) ......... cece cece eens

Sanders v. United States, etc.,

179 U.S.App.D.C. 272, 551 F.2d 548 (1977) ............

United States v. DeCoster,

TD CAMS EP ED ccc dccdccctccccevccesves

United States v. Haldeman, et al.,

181 U.S.App.D.C. 254, 559 F.2d 31

(en banc, 1976), cert. den. 429 U.S. 1120 (1977) .........

Statute and Rules

D.C. Code §12-301......... SG ee aR ines Onaga aoove

Other Authorities ,

Code of Professional Responsibility .............seeeeeeeees

Kaus and Mallen, The Misguiding Hand of Covasel,

2h CPA DRE, LIST CST) 3:5 cdisiiec cg gediccccengees

A.B.A. Standards (The Defense Function)...............++:.

A.B.A. Standards (Providing Defense Functions) ............

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 198i

No.

E. HOWARD HUNT, JR.,

Petitioner,

Vv.

WILLIAM O. BITTMAN et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

OPINIONS DELIVERED BELOW

This case was summarily disposed of by the United States

District Court for the District of Columbia in a memorandum

opinion, Hunt v. Bittman et al., reported at 482 F.Supp.

1017 (1980), and set forth in the attached Appendix (App.)

A at page 1a. It was affirmed without opinion by the United

States Court of Appeals for the District of Columbia Circuit,

with a judgment notation which is set forth as App.B, at page

lb.

2

JURISDICTIONAL STATEMENT

The judgment sought to be reviewed was filed March 11,

1981. A timely petition for rehearing was denied April 8,

1981. 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.

STATUTE INVOLVED

The issue here turns in part on the District Court’s

application of the District of Columbia statute of limitations,

D.C. Code § 12-301, which provides in relevant part:

§ 12-301. Limitations of time for bringing actions.

Except as otherwise specifically provided by law,

actions for the following purposes may not be brought

after the expiration of the period specified below from

the time the right to maintain the action accrues:

(8) for which a limitation is not otherwise specifically

prescribed— 3 years.

STATEMENT OF THE CASE

Petitioner Hunt, believing he was directly serving the

President and the Attorney General of the United States,

participated in the notorious Watergate break-in in 1972.

Shortly after the event he retained the prominent Washing-

ton law firm of Hogan & Hartson, and its leading defense

3

partner, William O. Bittman, to represent him and to protect

his interests as the Watergate case unfolded. He paid them

fees totalling $156,000, and for this they counselled him to

plead guilty to all counts of a six count indictment, which

resulted in his being given the second longest sentence (30

months to 8 years) meted out to any Watergate miscreant.

It is undisputed that from the outset Bittman was in close

touch with the so-called cover-up conspiracy, which had as

one of its purposes to keep Hunt quiet by inducing him to

plead guilty to avoid a possibly embarassing trial. See

United States v. Haldeman, etal., 181 U.S.App.D.C. 254,

559 F.2d 31 (en banc, 1976), cert. den. 429 U.S. 1120

(1977). But more than that, Bittman and his partners ignored

potentially effective defense strategies and defenses, made

critical misrepresentations to Hunt, secretly took steps in his

name which were antithetical to his best interests, breached

basic fiduciary duties owing to him, and while they were

representing him secretly retained separate counsel to advise

themselves and protect their interests in potential conflict

with their client’s.

Hunt came very slowly to the realization that his eminent

counsel had thus abused and betrayed him. He was, more-

over, helplessly incarcerated, except for an interval on bond

during an unsuccessful appeal, until February 1977, and he

was effectively barred by practical considerations from even

thinking about a malpractice claim while successor counsel

were seeking to overturn his conviction. So he did not file the

instant suit until September 1977.

Hunt’s lawyer-adversaries were never called on to answer

his charges on the merits. Instead they successfully inter-

posed the three-year District of Columbia statute of limita-

tions (D.C. Code § 12-301, supra). But they prevailed in this

only because the trial judge fashioned a special rule for their

4

protection, applicable only in the case of legal practitioners

in the District of Columbia, and different from the rule which

governs all other litigants there. The trial court held, in effect,

that for petitioner Hunt the time-bar commenced to run when

he was injured, without regard to whether he knew or should

have known of the injury at the time it was inflicted, and then

concluded that Hunt was in fact injured at the moment he

received his sentence.

The “injury” rule, for lawyers only, is inconsistent with

the “discovery” test adopted in the District of Columbia in

1968, Burke v. Washington Hospital Center, 293 F.Supp.

1328 (D.C.D.C. 1968), and applied in every appropriate

case since, e.g., Jones v. Rogers Memorial Hospital, 143

U.S.App.D.C. 51, 442 F.2d 773 (1971), Grigsby v.

Sterling Drugs, Inc., 428 F.Supp. 242 (D.C.D.C. 975),

aff'd 543 F.2d 417 (1976), Sanders v. Us ited States, etc.,

179 U.S.App.D.C. 272, 551 F.2d 458 (1977), Fitzgerald

v. Seamans, 180 U.S.App.D.C. 75, 553 F.2d 220 (1977),

Hernandez v. Koch, 443 F.Supp. 347 (D.C.D.C. 1978),

Burns v. Bell, 409 A.2d 614 (D.C. App. 1979). Moreover,

Fitzgerald, supra, removed any doubt that the discovery test

might be limited to medical malpractice, for it involved civil

rights claims, while Burns, supra, establishes that even

discovery of an obvious injury will not commence the

limitations period if negligence-causation is not apparent.

Compare, Fort Myers Seafood Packers, Inc. v. Steptoe &

Johnson, 127 U.S.App.D.C. 93, 381 F.2d 261 (1967), cert.

~ den. 390 U.S. 946.

It is also apparent from no more than a glance through the

District Court’s memorandum, App. la, and the Court of

Appeals’ judgment notation, App. 1b, that both Courts

moved perilously deep into fact-determination and ad-

judication of hotly disputed “factual circumstances” to

shield Hunt’s adversaries from exposure to a jury.

iti

5

ARGUMENT

Petitioner Hunt is aware that in ordinary circumstances

this Court should not be burdened with merely erroneous

interpretations of local law. But this case has extraordinary,

if not unique, elements. There are no conflicts to be cited

among authorities settling the rights of aggrieved criminal

defendants against their defaulting counsel; there is simply

an absolute void. Despite the hortatory Code of Professional

Responsibility and the mandates of the A.B.A. Standards

(The Defense Function, 1.1, 1.5, 3.6-9, 5.1-3, 6.1, 8.1-6;

Providing Defense Services, 1.1, 1.4 et passim.), no

defendant in a criminal case in the entire history of American

jurisprudence has ever—so far as counsel has discovered—

been allowed to recover for malpractice or treachery on the

part of his defense counsel. One case, later withdrawn from

publication, has held that conviction is an absolute bar to

recovery for no-matter-what irregularities in a defendant’s

representation. Bradshaw v. Pardee, 144 Cal. Repts. 246

(Cal.App. 1978). Another, Niosi v. Aiello, 69 A.2d 57

(D.C. Mun.App. 1949), has been stretched to stand for the

proposition that a convicted defendant (guilty or not) has no

recourse because he can show no actionable injury at-

tributablé to any act of counsel. McCord v. Bailey, et al.,

636 F.2d 606, 611-12 (D.C. Cir. 1980), cert. den., October

Term 1981, No. 80-1167. See Kaus and Mallon, “The

Misguiding Hand of Counsel—Reflections on ‘Criminal

Malpractice,’ ” 21 U.C.L.A. L.Rev. 1911 (1974).

The question raised by this petition is of sufficient

importance per se to warrant consideration by this Court;

close beneath it are basic constitutional issues touching at

least the Fifth, Sixth, Seventh and Fourteenth Amendments;

intertwined with it are equally basic and unresolved

s

6

problems concerning the standards for judging the ef-

fectiveness of assistance of defense counsel [See McCord v.

Bailey et al., supra, 636 F.2d at p. 609; United States v. De

Coster, 624 F.2d 196, 204-6 (D.C.Cir. 1979)}; and the case

offers an unusual vehicle for clarifying uncertainties that

have troubled both bench and bar for decades.

Finally, because this is part of the Watergate saga, which

will long remain in public view as a historical drama

illuminating our government in many lights, the case is not

one to be left in an aura of doubt. Other lawyer-malefactors

have been rigidly held to account for their Watergate roles. It

is singularly inappropriate to let off only those who were

performing as /awyers, in their traditional professional

capacities, by a dubiously contrived special immunity. This,

of all cases, should not be left standing as the negative

landmark that signals to defense counsellors they can count

on special protection if they neglect or abuse their clients.

CONCLUSION

Certiorari should be granted in this case for a full review of

the important question it raises; or in the arnative the

Court should reverse and remand for further proceedings

beyond the threshhold statute of limitations bar.

+

RUFUS KING

RUFUS KING, III

KING & NEWMYER

910 17th St., N.W.

Washington, D.C. 20006

(202) 466-5440

Attorneys for Petitioner

July 7, 1981

APPENDIX

APPENDIX A

E. Howard HUNT, Jr., Plaintiff,

v.

William O. BITTMAN et al., Defendants.

Civ. A. No. 77-1724.

United States District Court,

District of Columbia.

Jan. 9, 1980.

MEMORANDUM

GASCH, District Judge.

[1] This is an action for legal malpractice brought by E.

Howard Hunt, Jr., a convicted Watergate burglar and

conspirator,' against his former counsel, William O.

Bittman and the general partners of Hogan & Hartson.

Defendants move the Court for a dismissal on the ground.

that plaintiff's action is barred by the statute of limitations.

Defendants Mintz et al., the general partners of Hogan &

Hartson, also move for a dismissal on the ground that

plaintiff suffered no legal injury in connection with de-

fendants’ representation of him. Plaintiff opposes de-

fendants’ motions, and also moves for partial summary

judgment on the issue of liability. Defendants oppose

plaintiff's motion. For the reasons set forth below, the Court

'See United States v. Hunt, 168 U.S.App.D.C. 374, 514 F.2d 270

(D.C. Cir. 1975) (en banc) (per curiam) (affirming the district court’s

denial of Hunt’s motion to withdraw his plea of guilty to charges of

conspiracy, burglary, and illegal interception of oral and wire communi-

cations).

2a

treats defendants’ motions to dismiss as motions for sum-

mary judgment,” enters summary judgment for defendants,

and does not reach plaintiff's motion for partial summary

judgment.

BACKGROUND

On June 17, 1972, District of Columbia police arrested

four men from Miami,’ who were found inside the head-

quarters of the Democratic Party’s National Committee in

the Watergate office complex. “Arrested with them was

James McCord,‘ a former CIA agent who was then em-

"Because matters outside the pleadings were presented to and

considered by the Court on defendants’ motions to dismiss on the ground

that plaintiff's cause of action is barred by the statute of limitations, the

Court treats these motions to dismiss as motions for summary judgment

and disposes of them as provided in rule 56 of the Federal Rules of Civil

Procedure. Fagan v. National Cash Register Co., 157 U.S. App.D.C.

15, 26 n.25, 481 F.2d 1115, 1126 n.25 (D.C. Cir. 1973); Irons v.

Schuyler, 151 U.S.App.D.C. 23, 28, 465 F.2d 608, 613 (D.C. Cir.),

cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972). This

treatment is required under these circumstances by rule 1 2 of the Federal

Rules of Civil Procedure and requires no formal prior notice to the

parties where, as here, the parties have engaged in extensive discovery

on the statute of limitations issue and have had a full and fair opportunity

to submit all materials pertinent to this issue. 6 Moore’s Federal Practice

156.02, at 56-32 to -33 (2d ed. 1979) (citing Fagan v. National Cash

Register Co., supra, and Irons v. Schuyler, supra).

*See United States v. Barker, 168 U.S. App.D.C. 312, 514 F.2d 208

(D.C. Cir.) (en banc) (affirming the district court’s denial of the four

Miami men’s motions to withdraw their pleas of guilty to seven counts of

an indictment arising out of é» Watergate brvak-in), cert. denied, 421

U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975).

“See United States v. McCord, 166 U.S.App.D.C. 1, 509 F.2d 334

(D.C. Cir. 1974) (en banc) (affirming the conviction of McCord on three

counts of illegal interception of oral and wire communications, two

counts of possession of intercepting devices, two counts of burglary, and

one count of conspiracy), cert. denied, 421 U.S. 930,95 S.Ct. 1656, 44

L.Ed.2d 87 (1975).

3a

ployed as a security officer by the Committee for Re-

Election of the President [Richard M. Nixon] (CRP); the

next few days brought the arrest of their immediate

supervisors in the bizarre enterprise: [plaintiff] E. Howard

Hunt,’ a former CIA agent who was then, or had recently

been, employed as a ‘consultant’ to the White House, with

an office in that building, and G. Gordon Liddy,* a former

White House employee who was then employed as General

Counsel to the Finance Committee for the Re-Election of the

President (FRCP).””’

On July 3, 1972, plaintiff Hunt retained defendant

Bittman and the law firm of Hogan & Hartson to represent

plaintiff in connection with proceedings arising out of the

Watergate break-in. In September 1972 the grand jury

‘charged plaintiff in a six-count indictment with conspiracy,

burglary, and illegal interception of oral and wire com-

munications. In December 1972, shortly after his wife was

killed in an airplane crash, plaintiff decided to plead guilty to

any or all of the charges against him. His decision to plead

guilty was based on the overwhelming amount of evidence

against him and the emotional strain he was suffering as a

result of his wife’s death.*

On January 10, 1973, Bittman announced in open Court

that Hunt wished to plead guilty to three of the six counts of

‘See note 1 supra.

*See United States v. Liddy, 166 U.S.App.D.C. 95, 509 F.2d 428

(D.C. Cir. 1974) (en banc) (affirming the conviction of Liddy on one

count of conspiracy, two counts of burglary, and three counts of illegal

interception of oral and wire communications), cert. denied, 420 U.S.

911, 95 S.Ct 833, 42 L.Ed.2d 842 (1975).

"United Sttes v. Barker, 168 U.S. App.D.C. 312, 315,514 F.2d 208,

211 (D.C. Cir.) (en banc) (footnotes omitted), cert. denied, 421 U.S.

1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975).

"Deposition of E. Howard Hunt, Jr., at 229, 1183.

4a

the indictment, and represented that the Government agreed

to allow Hunt to plead guilty to these three counts and to

dismiss the remaining three counts.’ The prosecutor indi-

cated that Bittman’s representation was accurate, and that

such a dicnosition was acceptable to the Government.'°

Judge Sirica took the matter under advisement." On the

following day, January 11, 1973, Judge Sirica refused to

accept Hunt’s plea to only three counts.'? In view of this

ruling, Hunt agreed to plead guilty to all six counts.'® Judge

Sirica accepted this plea after determining that Hunt under-

stood the charges against him, had committed the crimes

with which he was charged, was entering the plea volun-

tarily, and had discussed the plea with and was entirely

satisfied with the services of his attorney, Bittman."

On March 23, 1973, Hunt appeared for sentencing before

Judge Sirica. On that date, Judge Sirica provisionally

sentenced Hunt to prison, and advised Hunt to cooperate

fully with the authorities;'* Hunt was incarcerated im-

mediately thereafter. In July 1973 the Watergate Special

Prosecutor indicated that there was a possibility of a conflict

of interest between Hunt and Bittman. As a result, on August

16, 1973, Bittman and the firm of Hogan & Hartson

withdrew as Hunt’s counsel. Succeeding defendants as

Hunt’s counsel were Sidney S. Sachs and the law firm of

Sachs, Greenebaum & Tayler.

Defendants’ Exhibit 34, at 1-3.

fd. at 3-5.

"Yd. at 7.

Defendants’ Exhibit 74, at 1-4.

fd. at 4.

“Id. at 4-16.

‘Defendants’ Exhibit 95, at 33-40.

5a

In September 1973 Hunt, represented by new counsel,

filed a motion to withdraw his guilty plea and to dismiss the

indictment. In November 1973 Judge Sirica denied this

motion. Two days later, on November 9, 1973, Judge Sirica

imposed a final sentence on Hunt of from thirty months to

eight years in prison and a fine of $10,000.

Hunt appealed the denial of his motion to withdraw the

guilty plea and to dismiss the indictment. On January 2,

1974, by Order of the Court of Appeals, Hunt was released

from prison pending resolution of his appeal. In February

1975 the Court of Appeals, sitting en banc, unanimously

affirmed Judge Sirica’s decision.'"® Two months later, on

April 25, 1975, Hunt returned to prison, where he remained

until he was released on parole on February 23, 1977.

Plaintiff Hunt filed this action on September 30, 1977,

seeking $5 million in compensatory damages and $5 million

in punitive damages. His amended complaint sets forth four

counts. The first count alleges that defendants were negligent

in their representation of Hunt. This count further alleges

that defendants’ acts and omissions directly and proximately

caused Hunt’s imprisonment, loss of reputation, loss of

earnings, and distress.

Each of the remaining three counts incorporates the

allegations made in count I, and sets forth a different legal

theory for recovery on the same allegations. The second

count alleges that defendants committed the acts and

omissions complained of in count I “recklessly, willfully,

'6United States v. Hunt, 168 U.S.App.D.C. 374, 376, 514 F.2d 270,

272 (D.C. Cir. 1975) (en banc) (per curiam). The Court of Appeals did,

however, vacate the sentences on the three counts that the Government

had agreed to dismiss as part of the plea agreement, which Judge Sirica

had refused to accept. Id., 168 U.S. App.D.C. at 375 n.2, 514 F.2d at

271 n.2. This decision in effect enforced the plea agreement negotiated

by the Watergate Special Prosecutor’s office and defendant Bittman,

acting on Hunt’s behalf.

6a

fully knowing and foreseeing the consequential damages to

[Hunt], and with intent to injure [him].”"’ The third count

alleges that defendants “conspired with other attorneys,

individual and corporate persons, and public officials” to

commit the acts and omissions complained of in count I."*

The final count alleges that defendants’ acts and omissions

complained of in count I deprived Hunt of his civil rights.

The factual allegations set forth in count I and in-

corporated in the remaining three counts can be summarized

as follows: (1) that defendants provided inadequate repre-

sentation to Hunt in the Watergate case in several re

spects;'? (2) that Bittman engaged in a conspiracy with

White House and CRP officials and other lawyers to protect

individuals in the White House at the expense of the interests

of Hunt and other Watergate defendants; and (3) that

Bittman’s loyalties became divided between himself and

Hunt after Bittman became the target of a criminal investi-

gation as a result of his transmitting payments to Hunt.

Amended Complaint {] 13.

"Jd 415.

'%Among the specific allegations of inadequate representation are the

following; (1) that defendants failed to counsel Hunt to cooperate with

the authorities; (2) that defendants failed to raise certain defenses, such

as “executive authorization,”’ on Hunt’s behalf; (3) that Bittman failed to

represent Hunt adequately in the plea bargaining with the prosecutor,

and (4) that Bittman counseled Hunt to perjure himself.

7a

DISCUSSION

A. The “Injury” Rule.

[2] Legal malpractice claims in the District of

Columbia” “‘may not be brought” more than three years

“from the time the right to maintain the action accrues.”

D.C. Code §12-301 (1973);7! see Fort Myers Seafood

The sole basis of jurisdiction in this Court for Hunt’s legal

malpractice claim is diversity of citizenship, 28 U.S.C. § 1332 (1976).

In adjudicating a claim based solely on diversity jurisdiction, federal

courts must make certain that the outcome of the litigation is sub-

stantially the same as it would be if the case were brought in a State court.

See Guaranty Trust Co. v. York, 326 U.S. 99, 108-09, 65 S.Ct. 1464,

89 L.Ed. 2079 (1945). Therefore, to reach substantially the same result

as would the Superior Court of the District of Columbia, this Court must,

and accordingly does, apply District of Columbia law to determine

whether Hunt’s claim is barred by the statute of limitations.

*1Section 12-301 of the District of Columbia Code provides in full as

follows:

Except as otherwise specifically provided by law, actions for the

following purposes may not be brought after the expiration of the

period specified below from the time the right to maintain the

action accrues:

(1) for the recovery of lands, tenements, or hereditaments-—15

years,

(2) for the recovery of personal property or damages for its

unlawful detention—3 years;

(3) for the recovery of damages for an injury to real or personal

property—3 years;

(4) for libel, slander, assault, battery, mayhern, wounding,

malicious prosecution, false arrest or false imprisonment—1 year,

(5) for a statutory penalty or forfeiture—1 year,

(6) on an executor’s or administrator’s bond—5 years; on any

other bond or single bill, covenant, or other instrument under

seal—12 years;

(7) on a simple contract, express or implied—3 years;

(8) for which a limitation is not otherwise specially

prescribed—3 years.

This section does not apply to actions for breach or contracts for

sale governed by §28:2-725.

D.C. Code § 12-301 (1973).

8a

Packers, Inc. v. Steptoe & Johnson, 127 U.S.App.D.C. 93,

94, 381 F.2d 261, 262 (D.C. Cir. 1967), cert. denied, 390

U.S. 946, 88 S.Ct. 1033, 19 L.Ed.2d 1135 (1968);

Weisberg v. Williams, Connolly & Califano, 390 A.2d

992, 994 (D.C.1978). In determining when a legal mal-

practice claim “accrues,” the District of Columbia follows

the so-called “injury” rule. Under this rule, a claim for legal

malpractice accrues when the plaintiff-client suffers actual

injury.** Fort Myers Seafood Packers, Inc. v. Steptoe &

Johnson, supra, 127 U.S.App.D.C. at 94, 381 F.2d at 262;

Weisberg v. Williams, Connolly & Califano, supra, 390

A.2d at 995 & n.5.

[3] In applying the “injury” rule to the factual cir-

cumstances presented here, the Court must determine when

Hunt suffered actual injury. If, on the one hand, Hunt

suffered his injury before October 1, 1974—that is, more

than three years before he filed his complaint on September

30, 1977—then his claim is barred by the statute of

limitations. If, on the other hand, Hunt suffered his injury on

October 1, 1974 or anytime thereafter, then his claim is not

barred by the statute of limitations.

The parties do not agree on the date on which plaintiff

suffered injury. Plaintiff contends that he suffered injury on

or after October 1, 1974. Hunt urges the Court to select one

of the following as the date on which or period during which

he suffered injury: (1) February 25, 1975—the date on

which the Court of Appeals affirmed Judge Sirica’s decision

221n Fort Myers Seafood Packers, Inc. v. Steptoe & Johnson, supra,

the United States Court of Appeals for the District of Columbia Circuit

held that the same principles should govern the accrual of a legal

malpractice claim as govern ordinary negligence claims. 127 U.S.App.

D.C. at 94, 381 F.2d at 262. In Weisberg v. Williams, Connolly &

Califano, supra, the District of Columbia Court of Appeals expressly

approved of this holding. 390 A.2d at 994.

9a

denying Hunt’s motion to withdraw his guilty plea; or (2)

April 25, 1975 to February 23, 1977—the period during

whic Hunt was incarcerated following the affirmance of

Judge Sirica’s decision.

Defendants, on the other hand, argue that Hunt suffered

injury before October 1, 1974. They urge the Court to select

one of the following three dates as the date on which Hunt

suffered injury: (1) January 11, 1973—the date on which

Hunt pleaded guilty; (2) March 23, 1973—the date on which

Hunt. was incarcerated immediately following his pro-

visional sentencing; or (3) November 9, 1973—the date on

which Hunt received his final sentencing.

Decisions in which courts have applied the “‘injury”’ rule

in legal malpractice cases offer some guidance in selecting

the date on which Hunt suffered injury. In Fort Myers

Seafood Packers, Inc. v. Steptoe & Johnson, supra, the

District of Columbia Circuit addressed the question of when

the statute of limitations begins to run on a malpractice

action against attorneys who allegedly gave improper legal

advice. In that case, the attorneys had drawn up a contract by

which plaintiff-appellant would send its boats to fish in

Venezuelan waters and sell the fish to a Venezuelan

processor who would in turn resell the fish to a third party.

The contract contained a provision stating that the laws of

Venezuela did not require any change in the then American

registry of plaintiff-appellant’s boats. After executing the

contract, plaintiff-appellant sent its boats to the Venezuelan

waters where they were impounded because their entry

under American registry was illegal. Applying the “injury”’

rule, the Fort Myers court concluded that the statute of

limitations began to run on the date on which the boats were

impounded and that therefore plaintiff-appellant’s suit was

timely filed.

10a

In Weisberg v. Williams, Connolly & Califano, supra,

the District of Columbia Court of Appeals addressed the

question of “‘when the statute of limitations begins to runona

malpractice action against an attorney who has failed to

timely file a client’s claim.” 390 A.2d at 994. The appellate

court declined to provide a definitive answer to this question,

stating: “‘we need not, and cannot, pinpoint the precise

moment when in all cases the cause of action for legal

malpractice based on negligently allowing the statute of

limitations to run on a client’s claim accrues.” Jd. at 995.

The Weisberg court further declined to provide a clear

answer to the question of when the legal malpractice claim of

the plaintiffs-appellants in that case accrued. It first noted

that the trial court had concluded that the cause of action

accrued when the statute of limitations defense was first

pleaded against plaintiffs-appellants. Id. at 994, 995 n.6.

The Weisberg court then rejected “‘as well beyond the point

at which appellants suffered injury” both the date on which

plaintiffs-appellants’ successor attorney informed them that

the judge had ruled that the statute of limitations period had

run on part of their claims and the date on which plaintiffs-

appellants finally settled the case for less than they would

have in the absence of defendants-appellees’ alleged

negligence in handling their case, and concluded simply that

“the facts of record here clearly support [the trial court’s]

holding that the statute of limitations period had run on —

appellants’ legal malpractice claim against appellees.” Jd. at

995.

On the basis of the foregoing authorities and under the

factual circumstances presented here, the Court concludes

that Hunt suffered injury no later than March 23, 1973. On

that date, Hunt was sentenced to prison and immediately

incarcerated on the criminal charges to which he had pleaded

lla

guilty on January 11, 1973. The Court rejects as well

beyond the point at which Hunt suffered injury the date of

February 25, 1975—on which the Court of Appeals

affirmed Judge Sirica’s decision denying Hunt’s motion to

withdraw his guilty plea—and the period of April 25, 1975 to

February 23, 1977—during which Hunt was incarcerated

following the affirmance of Judge Sirica’s decision. The

Court therefore holds that Hunt’s legal malpractice claim

against defendant accrued on or before March 23, 1973 and

that the three-year statute of limitations period began to run

on his claim no later than that date.

B. The “Fraudulent Concealment” Doctrine.

In Weisbrg v. Williams, Connolly & Califano, supra, the

District of Columbia Court of Appeals stated that “i]t is

well settled that fraudulent concealment of the existence of a

cause of action tolls the running of a conventional statute of

limitations.” 390 A.2d at 995. The Weisberg court then

indicated that the “fraudulent concealment” doctrine

applies to legal malpractice claims in the following manner.

And in the legal malpractice field, there is widespread

agreement that the statute will not run where the

existence of a cause of action for legal malpractice has

been fraudulently concealed by affirmative misrepre-

sentations. Concealment will exist if the attorney has

knowingly made false representations; it is only then

that his conduct, by way of estoppel or otherwise, will

toll the runnning of the statute.

Id. at 995-96. The Weisberg court also made two other

points about the application of the “fraudulent con-

cealment” doctrine to legal malpractice claims. First, it

noted that ‘‘a fraudulent concealment tolls a statute of limita-

tions only for so long as the concealment endures.” Jd. at

996. Second, the court emphasized that “‘one well

12a

established defense to a claim of fraudulent concealment is

that the plaintiff knew, or by the exercise of due diligence

could have known, that he may have had a cause of action.’ ”

Id.

Mindful of principles articulated by the Weisberg court,

the Court turns to consider whether the “fraudulent con-

cealment” doctrine saves Hunt’s legal malpractice claim

from the statute of limitations bar. In resolving this question,

the Court will first address the three basic factual allegations

set forth in plaintiff's amended complaint, and then consider

his argument that six particular matters were fraudulently

concealed from him.

[4] As indicated above, the amended complaint contains

three basic allegations. The first of these allegations is that

defendants provided inadequate representation to plaintiffin

the Watergate case in several respects. Hunt makes the

following specific allegations of inadequate representation:

(1) that defendants failed to counsel Hunt to cooperate with

the authorities prior to the imposition of his final sentence;

(2) that defendants failed to raise certain defenses, such as

“executive authorization,” on Hunt’s behalf; (3) that

Bittman failed to represent Hunt adequately in plea

bargaining with the prosecutor; and (4) that Bittmans

counseled Hunt to perjure himself.

The record indicates that each of these four specific

allegations of inadequate representation was known by Hunt

before October 1, 1974. With regard to the first of these four

allegations, the record indicates that Hunt was fully aware of

the importance of cooperating with the authorities before

October 1, 1974. At Hunt’s provisional sentencing on

March 23, 1973, Judge Sirica personally advised Hunt of

the importance of cooperating with the authorities.”

Defendants’ Exhibit 95, at 36-40.

13a

Moreover, Hunt’s published memoirs indicate that de-

fendants, who represented him until August 1973, “‘had

consistently counseled cooperation with the authorities,””™*

and his contemporaneously recorded diary indicates that

defendants “advised full cooperation.’’* Finally, another

contemporaneous document, written by one of the de-

fendants and dated May 3, 1973, indicates that Hunt was

advised “‘to testify fully and truthfully.”**

With regard to the second allegation of inadequate

representation, the record indicates that Hunt was fully

aware of the possible defense of “‘executive authorization”

before October 1, 1974. In his deposition, Hunt frankly

conceded that defendants, who represented him until August

1973, discussed this defense with him,”’ and that he felt that

the case should not be defended on that theory.”* Moreover,

a contemporaneous memorandum, written by Bittman and

dated July 5, 1973, confirms that Hunt was informed of the

defense of “executive authorization” and that he did not

want to defend the case on that theory.”® Finally, Hunt must

have been aware of this defense by September 1973, when

his new counsel, Mr. Sachs, raised it in Hunt’s motion to

withdraw the guilty plea and to dismiss the indictment.

With regard to the third allegation, the record indicates

that Hunt was fully aware of the adequacy of Bittman’s plea

bargaining with the prosecutor before October 1, 1974. In

his deposition Hunt admitted that his allegation of in-

adequate plea bargaining was “speculation,” and this specu-

Defendants’ Exhibit 7, at 311.

*Defendants’ Exhibit 69, at 7.

*Defendants’ Exhibit 38, at 1.

"Deposition of E. Howard Hunt, Jr., at 232-33.

"Jd. at 242-43.

Defendants’ Exhibit 15, at 6.

14a

lation was not based on any facts at all and certainly not

based on any facts learned by him after 1973.°° Moreover,

the only basis for this speculation was the other Watergate

defendants had received more favorable treatment from the

Government than Hunt did—facts that Hunt admitted

knowing in 1972 and 1973 when those defendants received

their more favorable treatment.*' Furthermore, the plea

bargaining between Bittman and the special prosecutor was

rejected by Judge Sirica, who insisted on a plea to all

counts, ”?

Finally, with regard to the fourth allegation, it is clear that

Hunt was fully aware of Bittman’s alleged advice to commit

perjury before October |, 1974. If Bittman, who represented

Hunt until August 1973, did counsel Hunt to perjure himself,

then Hunt must have known of this advice at the time it was

allegedly given.

The second of the three basic allegations contained in the

amended complaint is that Bittman engaged in a conspiracy

with White House and CRP officials and other lawyers to

protect individuals in the White House at the expense of the

interests of Hunt and the other Watergate defendants. With

regard to this allegation, the record indicates that Hunt knew

of Bittman’s alleged participation in this conspiracy before

October 1, 1974.

This same allegation of conspiracy by the original Water-

gate defense counsel, including Bittman, was made publicly

by James W. McCord, Jr., Hunt’s codefendant in the

"Deposition of E. Howard Hunt, Jr., at 171-76.

u Id.

"But see note 16 supra.

15a

Watergate case, in an unsuccessful effort to have his

conviction reversed.*? On June 8, 1973, McCord filed a

motion seeking an acquittal or a new trial in which he argued

that his trial had been prejudiced by the existence of a

conspiracy to obstruct justice. In his affidavits supporting

this motion filed on August 9 and October 10, 1973,

McCord alleged that his original Watergate lawyers and

defendant Bittman participated in this conspiracy, which

attempted to keep McCord and the other Watergate de-

fendants silent about the involvement of White House and

CRP officials in the Watergate epi. »de.** Moreover, in his

brief filed with the District of Columbia Circuit on February

14, 1974, McCord again publicly asserted and further

expanded upon his conspiracy allegations.** Finally on

March 15, 1974, Hunt sent to his then counsel, C. Dicker-

son Williams, a copy of an article about McCord appearing

in the Washington Post on the same date.*’ This article

described McCord’s filing of a motion to vacate his convic-

tion in which he alleged that Bittman had participated with

White House and CRP officials in the Watergate coverup

conspiracy. **

"See United States v. McCord, 166 U.S.App.D.C. 1, 18-20, 509

F.2d 334, 351-53 (D.C. Cir. 1974) (en banc) (rejecting as without merit

McCord’s allegation that his original Watergate lawyers had more

loyalty to the White House than to McCord and thus had not fully

represented McCord’s interests), cert. denied, 421 U.S. 930, 95 S.Ct.

1656, 44 L.Ed.2d 87 (1975).

**Affidavit of James W. McCord, Jr., United States v. Liddy, Crim.

No. 1827-72 (D.D.C.) (filed August 9, 1973); Affidavit of James W.

McCord, Jr., United States v. Liddy, Crim. No. 1827-72 (D.D.C.)

(filed October 10, 1973).

“Brief for Appellant at 16-17, United States v. McCord, 166

U.S.App.D.C. 1, 509 F.2d 334 (D.C. Cir. 1974) (filed February 14,

1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87

(1975).

Defendants’ Exhibit 195.

“Id. at 2.

16a

The final basic allegation contained in the amended

complaint is that Bittman’s loyalties became divided

between himself and Hunt after Bittman became the target of

a criminal investigation as a result of his transmitting

payments to Hunt. With regard to this allegation, the record

indicates that Hunt knew before October 1, 1974 that

Bittman was under scrutiny for his possible involvement in

the transmission of payments to Hunt.

Hunt had knowledge of this conflict-of-interest allegation

from many sources. A Jack Anderson column,*? which

appeared in the Washington Post on April 17, 1973 and of

which Hunt was aware at the time it appeared,“ described

Bittman’s alleged role in transmitting payments to the

Watergate defendants. Two days after the column appeared,

on April 17, 1973, Hunt was questioned before the grand

jury about Bittman’s alleged involvement in transmitting

these payments.*' Moreover, Hunt knew when defendants

withdrew as his counsel in August 1973 that the reason for

their withdrawal was the Watergate Special Prosecutor's

assertion of a possible conflict of interest between Hunt and

Bittman arising out of Bittman’s alleged role in the transmis-

sion of payments.*? Finally, Hunt knew on March 1, 1974

that Bittman was named an unindicted coconspirator in the

Watergate coverup indictment and that he had been a target

of a criminal investigation as a result of his alleged role in the

transmission of payments.’

Under these circumstances, the Court concludes that

Hunt knew before October 1, 1974 about the three basic

“Deposition of E. Howard Hunt, Jr., at 299.

“Id. at 302-03.

“Td. at 336-37, 374-81.

“Id. at 308.

17a

allegations of inadequate representation, conspiracy, and

conflict of interest contained in his amended complaint. The

Court therefore holds that all of these three basic allegations

fall within the knowledge defense of the “fraudulent conceal-

ment” doctrine and that Hunt’s claim based on these

allegations is not saved from the statute of limitations bar by

this doctrine.

The Court next considers plaintiff's argument that the

running of the statute of limitations was tolled by defendants’

fraudulent concealment of certain matters from him. He

alleges that the following matters were fraudulently con-

cealed from him: (1) the filing on his behalf of an opposition

to an ACLU motion to file an amicus curiae brief in the

Watergate case several months after the convictions of Hunt

and his codefendants; (2) the subsequent “‘doctoring” of

defendants’ internal index file to conceal the fact that the

opposition to the ACLU motion had been filed; (3) the

representation of defendant Bittman by Herbert J. Miller,

Jr.; (4) defendant Bittman’s withdrawal from Hogan &

Hartson; (5) the testimony of several Hogan & Hartson

partners in 1975 before a federal grand jury; and (6) the

November 14, 1972 memorandum written by Hunt.

None of these six allegations is sufficient under the

“fraudulent concealment” doctrine to save Hunt’s claim

from being barred by the statute of limitations. Plaintiff's

first and second allegations— which relate to the opposition

to the ACLU motion—are without basis. The record

indicates that Hunt received a copy of the ACLU motion

from defendant Bittman in June 1973 and “read it immedi-

ately upon receipt.”** The record further indicates that,

“Id. at 274-75, 290.

18a

rather than being concealed, the opposition was properly

filed with the Clerk of the Court and was a matter of public

record. **

Plaintiff's third and fourth allegations are similarly with-

out basis. With regard to the third allegation, the record

indicates that Hunt was aware by the fall of 1973 that Miller

was presenting defendant Bittman.“ With regard to the

fourth allegation, the record indicates that Hunt was aware

by July 1974 of defendant Bittman’s withdrawal from

Hogan & Hartson.*’

Plaintiff's fifth and six allegations are also without basis.

In plaintiff's fifth point, he alleges fraudulent concealment by

counsel in respect to certain testimony given by them before

the grand jury in 1975. It is uncontroverted that at the time

this testimony was given, these defendants no longer repre-

sented Hunt. Accordingly, an essential basis for the conten-

tion of fraudulent concealment is lacking. Finally, with

regard to the sixth allegation, the record indicates that Hunt,

as the author of the November 12, 1972 memorandum, was

aware of the memorandum and its contents. “*

Under these circumstances, the Court rejects as without

merit Hunt’s argument relating to defendants’ fraudulent

concealment of these six matters. The Court therefore holds

that the “fraudulent concealment” doctrine does not save

Hunt’s cause of action from the statute of limitations bar, and

that Hunt had knowledge of the existence of what he

characterizes as his cause of action against defendants

before October 1, 1974.

“‘Opposition of Defendant E. Howard Hunt to Motion of American

Civil Liberties Union to File Brief Amicus Curiae, United States v.

Liddy, Crim. No. 1827-72 (D.D.C.) (filed June 29, 1973).

“Deposition of E. Howard Hunt, Jr., at 324-25, 341-42.

“Deposition of William A. Snyder, at 165-66.

“Deposition of E. Howard Hunt, Jr., at 52.

19a

C. The “Disability” Statute.

[5] Ina final effort to avoid the statute of limitations bar to

his claim, Hunt relies on the District of Columbia disability

statute, D:C. Code §12-302(a) (1973). This statute pro-

vides in pertinent part that “when a person entitled to

maintain an action is, at the time the right accrues: . . . (3) im-

prisoned—he or his proper representative may bring action

within the time limited after the disability is removed.” Id.

This provision is inapplicable to the factual circumstances

presented here. Even assuming, as Hunt contends, that the

statute of limitations were tolled when Hunt was imprisoned

from March 23, 1973 until January 2, 1974, his release from

prison on the latter date would have removed this disability

and commenced the running of the statute. Therefore, even

under this assumption, Hunt’s action would have been

brought more than three years after the statute of limita-

tions began running and accordingly is barred by the three-

year limitations period.

CONCLUSION

For the foregoing reasons, the Court concludes that

Hunt’s legal malpractice claim against defendants accrued

no later than March 23, 1973—the date on which Hunt was

incarcerated immediately following his provisional sen-

tencing. The Court further concludes that Hunt’s claim was

not saved from the statute of limitations bar by the “fraudu-

lent concealment” doctrine or by the disability statute.

Under these circumstances, the Court holds that Hunt’s

claim for legal malpractice against defendants is barred by

the three-year statute of limitations. The Court therefore

enters summary judgment for defendants on this ground and

finds no occasion to address defendants Mintz et al.’s

argument that Hunt suffered no legal injury in connection

with defendants’ representation of him and plaintiff’ s motion

for partial summary judgment on the issue of liability.

APPENDIX B

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[No Opinion]

No. 80-1166

E. HOWARD HUNT, JR., Appellant

v.

WILLIAM O. BITTMAN et al.

Appeal from the United States District Court for the

District of Columbia.

Before: WRIGHT, TAMM, and GINSBURG, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia and was argued by counsel. While the issues

presented occasion no need for an opinion, they have been

accorded full consideration by the court. See Local Rule

13(c). |

Although in determining whether to grant a motion for

summary judgment matters of fact are to be viewed in the

light most favorable to the party opposing the motion, Nyhus

v. Travel Management Corp., 466 F.2d 440, 442 (D.C.

2b

Dir. 1972); Semaan v. Mumford, 335 F.2d 704, 705 n.2

(D.C. Cir. 1964), mere assertions in appellant’s pleadings

will not suffice to defeat such a motion, Dewey v. Clark, 180

F.2d 776, 780 (D.C. Cir. 1950), nor will unsupported

statements in appellant’s affidavits that are contradicted by

appellant’s own statements appearing elsewhere in the

record, Legerlotz v. Rogers, 266 F.2d 457, 458 (D.C. Cir.

1959), cert. dismissed, 362 U.S. 938 (1960); see United

States v. Kansas Gas & Electric Co., 287 F.2d 601, 603

(10th Cir. 1961); 10 C. WRIGHT & A. MILLER,

FEDERAL PRACTICE AND PROCEDURE §2727 at

551 (1973). Our reading of the District Court’s painstaking

opinion convices us that these principles were properly

applied in the disposition of this case. See Hunt v. Bittman,

482 F.Supp. 1017 (D. D.C. 1980).

On consideration of the foregoing, it is ORDERED and

ADJUDGED by this court that the judgment of the District

Court appealed from in this cause is hereby affirmed.

Per Curiam

For the Court

/s/ George A. Fisher

Clerk