August 11, 1994
MCKINLEY BATTLE & BATTLE'S TRANSPORTATION, INC., APPELLANTS
WILLIAM M. THORNTON AND VERNON WILLIAMS, APPELLEES
Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)
Before Ferren, Steadman and Farrell, Associate Judges.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: McKinley Battle and his non-emergency ambulance company, Battle's Transportation, Inc. (plaintiff-appellants), sued, respectively, their former attorneys, William Thornton and Vernon Williams, (defendant-appellees), alleging malpractice in defending appellants against criminal charges of Medicaid fraud. A jury returned a verdict in favor of Thornton and Williams. Battle and his company filed a timely appeal, advancing two principal contentions: (1) the trial court erred in ruling that the relevant standard of care for representing a criminal defendant charged with Medicaid fraud is the standard attributable to a general practitioner in civil and criminal practice, not to a Medicaid fraud specialist; (2) the court also erred in allowing the defendant lawyer-appellees to present evidence at trial showing the strength of the government's Medicaid fraud case against Battle. We affirm.
In early 1987, as part of a Medicaid fraud investigation, the District of Columbia government served a subpoena on Battle's Transportation, Inc., requiring the company to surrender its records for inspection. Without consulting an attorney, McKinley Battle, the company's president, turned over the requested records. Approximately six months later, the government informed Battle that he was going to be arrested for Medicaid fraud. On the day of his arrest, Battle contacted attorney William Thornton, who told Battle to "turn himself in." Battle spoke with Thornton again the day after Battle's arraignment and, on November 9, 1987, returned to court with Thornton to plead not guilty.
Upon Thornton's recommendation, Battle retained attorney Vernon Williams to provide separate representation for Battle's Transportation, Inc. Battle then paid $1,250 to each attorney for the respective representations. During one of Battle's several meetings with Thornton and Williams, Thornton presented Battle with a list of the government's charges against him. Battle testified at trial that Thornton had explained that the government was charging Battle with seventy-three counts of Medicaid fraud. According to Battle, however, Thornton never explained what Medicaid fraud was, what the government was required to prove against him, or who the government's witnesses might be.
Approximately one week after the meeting when Battle learned of the charges, Thornton informed Battle that the government had offered a plea bargain in which it would agree, in exchange for Battle's guilty plea, to reduce the number of counts from seventy-three to twenty, to recommend no incarceration, and to recommend a modest fine against Battle's Transportation, Inc. plus repayment of $1,885 to the Medicaid program. Battle testified that Thornton explained to him that accepting the government's plea bargain would also result in a six-month suspension from the District's Medicaid program. Battle further testified that he had told Thornton repeatedly that he was not guilty of fraud, but that Thornton nevertheless had encouraged him to accept the government's plea offer to avoid opening up "a keg of nails." Battle added that Thornton had told him he could be sentenced to one year in jail for each of the seventy-three counts against him if he elected to go to trial and lost.
Battle then testified that he had argued with Thornton and Williams for a couple of weeks about the desirability of accepting the plea offer, but that finally he had agreed to do so a few days before his scheduled status conference. On January 14, 1988, Battle appeared before Judge Nunzio, pled guilty to Medicaid fraud, and subsequently paid a $1,000 fine and $1,885 in restitution.
A month after pleading guilty, Battle received a letter from the District government suspending him for six months from the District's Medicaid program. The suspension did not come as a surprise because Thornton and Williams had informed Battle of this expected consequence of the plea. Battle then testified that approximately one year later, he received a letter from the United States Department of Health and Human Services (HHS) requesting the reasons for his guilty plea. Battle prepared a response to the letter and showed it to Williams before mailing it. Six months later, after Battle's period of suspension from the District's Medicaid program had ended, Battle received a response from the HHS Inspector General's office, dated August 2, 1989, suspending Battle's Transportation, Inc. from the federal Medicaid program for five years. Battle then testified that, upon receiving the letter, he contacted Thornton "to see what could do about it." Thornton read the letter from the Inspector General and told Battle that he would do some research. Battle testified that when he received no response from Thornton, he contacted Williams, who told Battle that Thornton "was washing his hands of it and that he could do what he wanted to do." Battle then went to the District's Medicaid office, which advised him to seek new counsel. As a result, Battle retained attorney Michael Flanagan.
Flanagan testified that after analyzing the company's records, he became convinced that Battle had not intended to submit false claims but instead "may have made mistakes in his billing" or "might have been somewhat negligent [in his billing]." Flanagan then testified that he had moved the court to withdraw Battle's guilty plea on the ground that the Judge who had accepted the plea had failed sufficiently to explore whether Battle had formed the requisite intent for Medicaid fraud. The court granted the motion to withdraw Battle's plea on the condition that Battle turn over all the company's files to the Medicaid fraud control unit so that the government, in its discretion, could reinstate the charges against him.
Flanagan also testified that soon after Battle had withdrawn his guilty plea, the government had reinstated the charges against Battle and his company, charging sixty counts of Medicaid fraud, including some Medicaid claims that had not been mentioned in the original indictment. Flanagan filed a motion to dismiss on the grounds of vindictive prosecution and of expiration of the statute of limitations. The trial court did not decide the motion because, upon the recommendation of Judge McIntyre, the parties reached an administrative settlement allowing Battle to resume his business as Medicaid transportation provider in the District of Columbia after paying the District $4,000. In addition, HHS had dismissed its charges against Battle and permitted him to resume his federal Medicaid business. Flanagan's law firm billed Battle and his company a total of $89,000 for services rendered.
Battle then filed the present malpractice action against Thornton and Williams, claiming negligent failure to advise him that a guilty plea would result in a five-year suspension from the federal Medicaid program. A six-member jury returned a verdict for the attorney-defendants.
Appellants contend the trial court erred in concluding that the relevant standard of care for judging the attorneys' representation was the standard required of "general practitioners in civil and criminal practice," not a higher standard applicable to Medicaid fraud specialists. Appellants accordingly contend that the trial court erred in permitting appellees' expert witness, Peter Myers, Esq., to testify as to the general practitioner's standard of care, and in refusing to allow appellants to present expert testimony consistent with their own proposed (higher) standard of care. *fn1
In a lawyer malpractice case we have said:
The elements of an action for professional negligence are the same as those of an ordinary negligence action. "The plaintiff bears the burden of presenting evidence 'which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of.'" Morrison v. MacNamara, D.C. App., 407 A.2d 555, 560 (1979) (citations omitted). A uniform standard of care applies in actions for negligence: reasonable care under the circumstances. Morgan v. District of Columbia, D.C. App., 449 A.2d 1102, 1108-09 (1982). Inherent in such reasonable care, however, is the requirement "that those with special training and experience adhere to a standard of conduct commensurate with such at tributes." Morrison, supra at 560. Thus, "a lawyer must exercise that degree of reasonable care and skill expected of lawyers acting under similar circumstances." 407 A.2d at 561. *fn2
O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982). Under O'Neil, therefore, a lawyer must exercise that degree of reasonable care and skill expected of someone who has "special training" (i.e., training as a lawyer), coupled with enough "experience," to handle the case under the circumstances.
The question, however, remains: how "specialized" must an attorney's training and experience be to satisfy the duty of care required for legal representation in a particular case? The trial court ruled on the pretrial motion in limine that "unless there is proof, prima facie proof that these attorneys, the Defendants, held themselves out as specialists, the standard is not going to be the standard for specialists. It's going to be a standard of general practice." That is to say, only if the lawyers had held themselves out to appellants as Medicaid fraud specialists would the court have based the applicable standard of care on the standard governing such specialists. *fn3
Appellants argue in their brief that in a specialized practice such as Medicaid fraud, which allegedly requires specialization and expertise beyond that of a general practitioner, an attorney who is not an expert but accepts such representation "has an affirmative duty to tell the client that he [or she] is not competent, by knowledge and experience, to mount an effective defense to charges of Medicaid fraud." Otherwise, the attorney must be held to the specialist standard of care. As we understand this argument, appellants essentially are contending that, as a matter of fact, every Medicaid fraud case inevitably requires a specialist, and thus that, as a matter of law, the standard of care for measuring ordinary negligence in every such case will be the standard of care required of a specialist -- unless the lawyer affirmatively disclaims having the required expertise and the client, adequately informed of the risk, retains that attorney's services nonetheless.
Inherent in this argument is a premise that Medicaid fraud is a generally recognized subspecialty requiring expert qualifications, and thus that anyone taking such a case without affirmatively disclaiming such specialized competence implicitly warrants that he or she has such expert qualifications. If this were not the premise, an attorney's failure to disclaim expertise would simply mean, in a Medicaid fraud case, what any criminal attorney implies in accepting a retainer: that taking the case implies competence to handle criminal cases generally; that Medicaid fraud does not present the kind of challenge that inevitably (i.e., in every such case) requires a higher, more specialized, level of expertise than other kinds of criminal cases require; and that, in the Medicaid fraud case at hand, the lawyer's acceptance of the representation implies the legal knowledge, skill, and experience -- indeed, the competence -- necessary to handle that particular matter.
The foregoing analysis suggests three questions: (1) Does the legal profession have a recognized Medicaid fraud specialty which a lawyer practices at his or her peril without having the expert qualifications required -- or at least without affirmatively disclaiming such expertise to the prospective client? (2) If a Medicaid fraud specialty is not recognized as such, under what circumstances will a general practitioner be held liable for malpractice for defending a Medicaid fraud prosecution? (3) What qualifications shall a trial Judge require before permitting a general practitioner to offer expert testimony in a malpractice case concerning a lawyer's handling of a Medicaid fraud prosecution? We turn to the first inquiry.
The legal profession, in contrast with the medical profession, usually has not divided its practitioners into certified specialists. The American Bar Association has approved state certification of legal "specialists." Compare MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.4 (1994) ([in jurisdictions "where there is a regulatory authority granting certification or approving organizations that grant certification] a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization or authority but only if . . . .") with MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 2-105 (A) (Final Draft 1969) ("A lawyer shall not hold himself [or herself] out publicly as a specialist," with certain exceptions). *fn4 But as of October 1992, only fifteen jurisdictions had implemented specialization programs, and the District of Columbia was not among them (and is not now). See Qualifications, Specialization, Laws. Man. on Prof. Conduct (ABA/BNA) 21:4001 (1992) (hereafter Specialization). Indeed, in considering the ABA MODEL RULES OF PROFESSIONAL CONDUCT, this court, on the D.C. Bar's recommendation, declined to adopt Model Rule 7.4 altogether. See (supra) note 4; Proposed Rules of Professional Conduct and Related Comments, Showing the Language Proposed by the American Bar Association, Changes Recommended by the District of Columbia Bar Model Rules of Professional Conduct Committee, and Changes Recommended by the Board of Governors of the District of Columbia Bar, at 229 (Nov. 19, 1986) (hereafter Legislative History). *fn5 Moreover, states that have programs to certify attorneys as specialists have adopted rather general areas of specialty. *fn6 Louisiana, for example, recognizes specialists in tax law but does not divide its tax specialists further into subspecialties such as international tax or corporate tax. See Specialization, at 21:4011. Many states, in fact, have adopted only two legal specialties: civil trial practice and criminal trial practice. See Specialization, at 21:4008-13. We have found no state, however, that recognizes Medicaid fraud as a subspecialty of .
Because the District of Columbia does not certify lawyer specialists, it would be altogether unreasonable -- indeed, impossible -- to require lawyers called as expert witnesses in a malpractice trial to be formally recognized in some way as specialists. *fn7 Furthermore, the clincher here is that, even in states where specialties are recognized, they are no more specialized than, for example, practitioners of "" or "criminal trial practice." See (supra) note 4. *fn8
Because, in the District of Columbia (and elsewhere), a Medicaid fraud specialty is not recognized, the remaining questions are easily answered. As we made clear in O'Neil, an attorney in any case is responsible for having not only the formal legal training reflected by membership in the bar but also enough additional knowledge, as well as experience, to permit the "exercise that degree of reasonable care and skill expected of lawyers acting under similar circumstances." O'Neil, 452 A.2d at 341 (quoting Morrison v. MacNamara, 407 A.2d 555, 561 (D.C. 1979)). The required experience presumably could, in certain instances, include continuing legal education necessary to become informed about, and keep abreast of, new legal areas and developments. See DISTRICT OF COLUMBIA RULES OF PROFESSIONAL CONDUCT Rule 1.1 Comment  (Maintaining Competence) (1993). The required experience also could, on some occasions, include previous involvement with the same or similar kinds of cases. Thus, it is entirely possible that, based on ad hoc evaluation of individual qualifications, a particular general practitioner may not be qualified to handle a particular -- or even any -- Medicaid fraud case and should decline the representation. *fn9
But that possibility is quite different from what we understand appellant's only contention to be on appeal, which we have rejected: that no practitioner can properly undertake a Medicaid fraud case unless he or she qualifies as a Medicaid fraud specialist in some formally discernible or recognized sense, or else expressly disclaims that qualification before accepting the representation. The differences at issue here are subtle but real. Appellant in effect claims, incorrectly, that for any criminal attorney responsibly to handle any Medicaid fraud case, that attorney must be held to, or affirmatively disclaim, credentials evidencing Medicaid fraud specialization and related expertise. To the contrary, we say, with the trial court, that the correct standard of care, unless affirmatively represented otherwise, see (supra) note 3, is definable, not by reference to a recognized specialty, but by reference to the general practice of coupled with the requirement that the particular attorney have the necessary training and experience to handle the particular case. The more complex and complicated the case, the more training and experience presumably will be required to assure the lawyer "exercises that degree of reasonable care and skill expected of lawyers acting under similar circumstances." O'Neil, 452 A.2d at 341 (quoting Morrison, 407 A.2d 555 at 561). It is important, however, to indicate, in the extreme, where we differ from appellant's position: a general criminal practitioner will not necessarily be unqualified to handle a Medicaid fraud case, or any other kind of criminal case, simply because that attorney has never handled such a case before. *fn10 For many reasons, some attorneys without such experience will be competent, nonetheless, to do so; others, quite obviously, will not.
It follows that an attorney called to testify as an expert witness in a Medicaid fraud case need not -- indeed, cannot -- be a formally designated specialist; rather, any general practitioner will be eligible to provide such testimony, provided that the attorney can convince the court on voir dire that he or she possesses the legal knowledge, skill, and experience reasonably necessary to undertake the expert's role. More specifically, an attorney will be qualified to testify as an expert in a legal malpractice action if the witness is a general legal practitioner who by training and experience is familiar with the degree of care and skill reasonably to be expected of lawyers acting under the circumstances of the case in which the expert is testifying. See O'Neil, 452 A.2d at 341.
In this case, therefore, the appellees-lawyers' expert, Peter Myers, Esq., a general practitioner with substantial experience in , was not necessarily unqualified to testify as an expert merely because he was not a Medicaid fraud specialist or because he had never handled a Medicaid fraud case. The issue, rather, is attorney Myers' training and experience: were they sufficient to qualify him to testify as an expert about the proper handling of a Medicaid fraud case?
The trial court qualified attorney Myers to testify because of his legal training and his intensive experience as a yer. During voir dire, Myers testified that he was a visiting professor of clinical law at George Washington University National Law Center. He further testified that he had represented, at both the trial and appellate levels, approximately sixty criminal defendants in the past ten years, including five or six cases that challenged criminal convictions on the ground of ineffective assistance of counsel. Myers also testified that, although he had never been involved in a Medicaid fraud case, he had participated in other types of criminal fraud cases, including one in which he represented a doctor who was charged with writing false prescriptions. Finally, Myers testified that he had studied and was familiar with the standard of care required of an attorney performing services for a client charged with criminal fraud, and that he also was knowledgeable about an attorney's obligation to inform his or her client about the consequences of a conviction.
The "qualification of a particular witness to testify as an expert is largely within the domain of the trial Judge." Ornoff, 549 A.2d at 731 (quoting Jenkins v. United States, 113 U.S. App. D.C. 300, 308 n.19, 307 F.2d 637, 645 n.19 (1962)). Appellants contend that attorney Myers was not competent to testify because he had no experience in the field of Medicaid fraud. Because the trial court has broad discretion to qualify experts, because Medicaid fraud is not a recognized specialty as such, and because attorney Myers had extensive experience in the practice of , including criminal fraud (which as a category includes Medicaid fraud), we conclude that the trial court did not abuse its discretion in qualifying Myers to testify as an expert. Any weakness attributable to Myers' lack of experience with Medicaid fraud was a matter for cross-examination at trial, affecting the weight to be accorded his testimony. *fn11
Appellants next contend the trial court erred in admitting testimony and argument from the lawyer-appellees showing the strength of the government's Medicaid fraud case. Appellants argue, more specifically, that the trial court erred in allowing the prosecutors who brought the original criminal case to testify at trial. Under the circumstances, we disagree.
The trial court ruled at the pretrial hearing that if appellants opened the door with evidence tending to show that the government's Medicaid fraud case had been weak, then appellees would not be "barred from presenting evidence to the contrary to show that it's not so." The trial court's pretrial ruling was not improper. See Lampkins v. United States, 515 A.2d 428, 430 (D.C. 1986) (introduction of incompetent or irrelevant evidence by a party opens door to admission of otherwise inadmissible evidence). *fn12
Appellants proceeded to introduce evidence at trial that clearly suggested the government's Medicaid fraud case had been weak. For example, appellants' principal witness, Michael Flanagan -- the attorney who helped Battle withdraw his guilty plea -- testified that when he had looked at Battle's company records, he had "found as a matter of fact[, with respect to] most of the charges that were alleged[, that] services had been provided." Flanagan added that there were only "73 counts alleged out of 21,000 in the universe of potential claims," which is a "relatively small number," and that of the seventy-three counts, thirty were related to one individual for whom services actually had been performed. Finally, Flanagan testified he was "comfortable that there was certainly no intent that . . . could be inferred from the mere number of counts ." It is therefore clear from this evidence tending to show the weakness of the government's fraud case that appellants opened the door to rebuttal testimony from the government regarding strength of the government's case.
Appellants also argue that the trial court erred in preventing them from calling Judge McIntyre as a witness to rebut appellees' evidence showing the strength of the government's fraud case against them. Appellants allege that Judge McIntyre would have testified that he "believed that [the government's] case against Battle had very little chance of success," and that the Judge had expressed this opinion to the prosecutors when the government reinstated Medicaid fraud charges against Battle after he had withdrawn the guilty plea. There was no error.
Because of the position and authority of Judges, there is considerable risk that a jury will accord a Judge's testimony substantially greater weight than it deserves. See People v. Drake, 841 P.2d 364, 368 (Colo. Ct. App. 1992) ("given the weight to which a jury might accord such evidence and given the Judge's other duties, we view the practice of [calling a Judge as a witness] as one which should be sparingly used and only when the proponent of the evidence shows that the Judge's testimony is not only relevant but also necessary to prove a material element of the case"); Cornett v. Johnson, 571 N.E.2d 572, 575 (Ind. Ct. App. 1992) ("the Judge [when testifying] appears to be throwing the weight of his position and authority behind one of two opposing litigants"). Such testimony is likely to be particularly prejudicial in malpractice actions. Furthermore, in this case, Judge McIntyre was not familiar with all the evidence since the case did not go to trial. The trial court, therefore, did not err in declining to permit Judge McIntyre to testify. See Cornett, 571 N.E.2d at 575 ("The risk of prejudice to the other party would be great if the presiding Judge were allowed to testify in a subsequent malpractice action."); Hirschberger v. Silverman, 80 Ohio App. 3d 532, 609 N.E.2d 1301, 1306 (Ohio Ct. App. 1992) ("We agree with those courts which have held that a Judge cannot testify in a malpractice case that the court's decision in the underlying case would have been different absent the alleged act of malpractice."). But cf. Gold v. Warden, State Prison, 222 Conn. 312, 610 A.2d 1153, 1157 (Conn. 1992) ("Where there is a compelling need for a Judge's testimony as to observed facts in order that Justice be done . . . a Judge is a competent witness and should not be precluded from testifying.")