The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Plaintiff filed the complaint in this case pro se, alleging that defendant committed legal malpractice in connection with her representation of him in a criminal case. Following discovery, defendant filed a motion for summary judgment, which plaintiff has opposed. Also before the Court is plaintiff's motion for sanctions. After consideration of the parties' submissions, including the supporting declarations, and the applicable legal authority, the Court will grant summary judgment for the defendant. Plaintiff's motion for sanctions will be denied.
Plaintiff alleges that on or about November 18, 1999, he retained defendant, an attorney, to represent him in a criminal case that had been filed in this Court, United States v. Kenneth A. Hinton, Criminal Number 99- 211. Complaint, ¶ 5. Plaintiff asserts that he paid the defendant a retainer of $3,800.00 "for commencement of" his case. Id., ¶ 6. Defendant purportedly "assured" plaintiff that she would attend a scheduled bond review hearing on November 22, 1999, and would file a motion for reinstatement of his bond. Id., ¶¶ 7-8. Nevertheless, plaintiff alleges, defendant did not file the bond motion and did not appear at the hearing. Id., ¶ 9. As a result, plaintiff asserts that he was forced "to rely on the ineffective legal counsel and services of a Federal Public Defender...." Id., ¶ 10. Plaintiff contends that he was "left with unexpected certainties of the disposition of [his] case" and suffered physically, emotionally, and socially, and lost his employment. Id., ¶ 11.
Plaintiff further alleges that defendant failed to properly conduct "pre-trial investigations, witness interviews, legal research and discovery [in his] case," and failed to provide him documentary proof of her efforts to prepare for his trial. Id., ¶ 12. Because of "defendant's deliberate indifference and lack of due diligence," plaintiff claims, he suffered further physical and mental anguish and now has "a wrongful conviction and illegal sentence... for alleged offenses that [he] never committed." Id., ¶ 13. For what he characterizes as a "breach of trust" and "gross negligence," plaintiff seeks $300,000. Id., ¶¶ 14, 16.
Defendant's answer admits that she was retained to provide legal services to plaintiff in November 1999, that plaintiff appeared before Judge Urbina for a scheduled bond hearing on November 22, 1999, and that she did not argue plaintiff's case on that date. Defendant denies the remaining essential allegations of the complaint.
II. The Parties' Submissions on the Motion for Summary Judgment
Defendant contends that there is no evidence that plaintiff suffered any injury because she failed to argue the bond motion and no evidence that plaintiff's conviction was the result of any alleged malpractice on her part. She points out that plaintiff has not proffered an expert witness on the legal standard of care applicable to legal malpractice claims in the District of Columbia or any medical expert witness to prove that he suffered physical or psychological injury from defendant's alleged malpractice. Defendant has not submitted any declarations in support of her motion but asks that the Court take judicial notice of the record in United States v. Hinton, as authorized by Rule 201(d) of the Federal Rules of Evidence. Plaintiff does not oppose this request, and the Court therefore will take judicial notice of those records.
The record in United States v. Hinton shows that on May 27, 1999, when plaintiff was first charged, an assistant Federal Public Defender was appointed to represent him and he was released on bond after posting 20 percent of a $10,000 cash bond. Various motions were then filed by the public defender. On October 20, 1999, plaintiff's bond was revoked and a new bond in the amount of $20,000 cash was imposed as the condition for his release. United States v. Hinton, Dkt. # 24. On November 1, 1999, the public defender filed a motion for reconsideration of the revocation of his bond. This motion was denied at a hearing on November 5, 1999. Two weeks later, on November 19, 1999, a second motion for reconsideration was filed. At a hearing on November 22, 1999, while plaintiff was still being represented by his public defender, Judge Urbina granted the motion and reinstated plaintiff's original bond, resulting in his release. United States v. Hinton, Dkt. # 27. On the same date, defendant entered her appearance as counsel for plaintiff. Eleven days later, on December 3, 1999, defendant filed a motion to withdraw as counsel for plaintiff. United States v. Hinton, Dkt. # 30. The motion was granted on December 6, 1999, and on the same day Judge Urbina appointed another attorney to represent plaintiff. At plaintiff's trial, which began on March 17, 2000, this new attorney represented the plaintiff.
The record in United States v. Hinton further shows that defendant moved to withdraw because plaintiff had refused to sign a written retainer agreement. The Rules of Professional Conduct of the District of Columbia bar require that a lawyer who "has not regularly represented the client" shall communicate the basis of the fee to the client, "in writing, before or within a reasonable time after commencing the representation." Rule 1.5b. In her motion to withdraw, defendant stated that the "initial arrangements to retain counsel were made by [plaintiff's] wife while he was still incarcerated.... The understanding was that [plaintiff] would execute a retainer agreement with counsel at his first opportunity." United States v. Hinton, Dkt. # 30. Defendant stated that she met with plaintiff on the morning of December 3, 1999, to prepare for a status conference on December 6, 1999, and to execute the retainer agreement. Id. "After an hour of conference" plaintiff told defendant that he had no present ability to pay her legal fee "and that, therefore, he refused to sign a retainer agreement." Id. Plaintiff told defendant he "intended to find 'pro bono' counsel. " Id. (emphasis in original). Defendant's motion to withdraw was granted on December 6, 1999; the new attorney was then appointed to represent plaintiff the same day. United States v. Hinton, Dkt. ## 28, 29.
Defendant argues that these facts are inadequate to establish the elements of legal malpractice. Defendant notes that plaintiff was released on bond the same day defendant entered her appearance, that defendant represented plaintiff for only two weeks at the beginning of the criminal proceedings, and that plaintiff was represented by other counsel during the three months between defendant's withdrawal of her appearance and the trial. Moreover, defendant asserts, plaintiff has not shown that he lost a valid defense as a result of the alleged malpractice.
B. Plaintiff's Opposition
Plaintiff was advised by the Court of the requirements of Rule 56(e) of the Federal Rules of Civil Procedure and that factual assertions in the defendant's motion would be accepted as true unless he submitted his own affidavit or other documentary evidence contradicting the assertions. Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992), quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). In opposition to the motion, plaintiff submitted his affidavit reiterating the allegations of his complaint. Opposition, Exhibit 2. In addition, he states that defendant "failed to investigate the charges against" him, "failed to obtain information regarding witnesses and essential evidence," "failed to provide plaintiff an accounting of her time, expenses and actual work on plaintiff's case," and "failed to discuss with plaintiff his rights and options to challenge his charges." Id., at 2. Plaintiff proffers one page of the docket in his criminal case, which reflects that defendant entered her appearance on the same day as the November 22 status conference. This has been proffered because plaintiff is presumably suggesting that this is evidence that defendant failed to properly represent him at the status conference. A portion of the transcript of the status hearing ...