# Petition — Hunt v. Bittman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 860

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2502%3A1. Public record. Not legal advice.