An Allegheny County Court of Common Pleas judge has thrown out a suit against K&L Gates and Buchanan Ingersoll & Rooney brought by a former state House staffer caught up in the Computergate scandal.
Judge Robert J. Colville did not give a reason why he granted all of the defendants’ preliminary objections, simply signing last week the proposed orders the defendants attached to their motions.
Plaintiff Elmer “Al” Bowman filed a complaint in late December against the two firms alleging their allegiances to state legislators caused them to ignore his pleas to strike a deal with prosecutors and testify against the legislators, resulting in 48 charges being brought against him.
Bowman, who ultimately pled guilty to one charge of conspiracy to commit conflict of interest, said in his complaint in Bowman v. Becker that subsequent conversations with prosecutors have led him to believe they would have offered him immunity for his testimony against legislators.
Bowman sued Buchanan Ingersoll and one of the firm’s partners, James Becker, in the Allegheny County Court of Common Pleas. Bowman also sued K&L Gates, of counsel John P. Krill Jr., partner Linda J. Shorey and associate Abram D. Burnett. The Pennsylvania House Republican Caucus hired and paid the two firms to represent Bowman during the investigation until he ultimately retained his own counsel.
Bowman has raised legal malpractice, breach of fiduciary duty and breach of contract claims against all of the defendants.
Both firms filed separate preliminary objections that largely mirrored one another. As for the breach of contract claim, the firms said Bowman could not prove he suffered any damages since he did not pay either firm’s legal bills.
In a breach of contract action against attorneys, a criminal defendant cannot recover damages in excess of the amount actually paid for the attorneys’ services, the firms said. They said Bowman has admitted the caucus paid for the fees from both firms as a “condition and benefit” of his employment.
K&L Gates and Buchanan Ingersoll further argued that the doctrine of in pari delicto bars Bowman from recovering damages that were substantially caused by his own immoral or illegal activities.
Bowman “admits that he was arrested and charged with 48 criminal counts as a result of the grand jury investigation,” Buchanan Ingersoll said in its motion. Bowman “also has admitted that he willfully and voluntarily agreed to plead guilty to conspiracy to commit conflict of interest. It is clear that [Bowman] has ‘grounded his action upon an illegal act,’ the commission of a crime, and [Bowman] now seeks to profit from that wrongdoing.”
The firms also argued that a criminal defendant can’t pursue a civil action in trespass against defense counsel without proving his or her innocence of the crimes with which he or she was charged. They said Bowman’s guilty plea means he cannot establish that “but for” the attorneys’ conduct, he would have obtained an acquittal or dismissal of the charges against him.
K&L Gates was represented in the action by attorneys from Burns White, including David B. White. Buchanan Ingersoll was represented by attorneys at Dinsmore & Shohl, including Ansley S. Westbrook II. Donna J. McClelland of Greensburg, Pa., represented Bowman.
White said the judge’s decision reinforces what Pennsylvania law has always been.
“When you have someone who is a criminal defendant and then now becomes a civil plaintiff in a legal malpractice claim against their criminal defense attorneys, they cannot pursue those types of claims unless the plaintiff can show they were innocent of the crime in which they’ve been charged,” White said, adding that Bowman pled guilty to his charge.
White said that theory, espoused in the Pennsylvania Supreme Court’s 1993 decision in Bailey v. Tucker , effectively resulted in the two tort claims of breach of fiduciary duty and legal malpractice being dismissed. The breach of contract claim failed on the grounds that Bowman did not pay his own attorney fees and therefore had no damages to collect under that claim, he said.
According to his complaint, Bowman was employed by the House Republican Caucus when, in 2008, he received a subpoena to testify before a grand jury investigating whether legislators were using public money and public employee time for political campaign activities. “Computergate” dealt specifically with the House Republican Caucus’ purchase of computer software to aid in political activity.
At the time he received the subpoena, Bowman reported directly to and was directly supervised by Brett Feese, the legal counsel to the Republican caucus.
Bowman met with the K&L Gates attorneys in September, October and November 2008, at which points he detailed his knowledge of the activities of Feese, Feese’s aide Jill Seaman, former state House Speaker John Perzel, Perzel’s aide Brian Preski and current state Speaker of the House Sam Smith, according to the complaint.
Bowman alleged in the complaint that, to a large extent, the information he provided incriminated those people in “improper and unlawful activities.”
Smith was never charged with any wrongdoing and testified at Feese’s trial. Feese and Seaman were found guilty after a trial and Perzel and Preski pleaded guilty.
Bowman said he repeatedly asked the attorneys at both K&L Gates and later at Buchanan Ingersoll to negotiate on his behalf with prosecutors from the Office of Attorney General to secure his immunized testimony before the grand jury or other cooperation with the prosecution. He alleged that the lawyers ignored his pleas and instead arranged for prosecutors to meet with Smith, Preski, Seaman and others so they could proffer exculpatory statements that would have contradicted Bowman’s, according to the complaint.
When Bowman was arrested in December 2009, he alleged he learned prosecutors talked with the K&L Gates defendants and offered immunity for Bowman’s testimony. Bowman said, according to the complaint, that he also learned the attorneys suggested to the prosecutors that Bowman was unable or unwilling to cooperate with the government. Bowman said he was never told of these discussions with the prosecutors and was instead told the government was not ready to meet with him, according to the complaint.