McCord v. Bailey, 79-1085

Citation204 U.S. App. D.C. 334,636 F.2d 606
Decision Date15 October 1980
Docket NumberNo. 79-1085,79-1085
PartiesJames W. McCORD, Jr., Appellant, v. F. Lee BAILEY et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 74-1888).

Rufus King, Sr., Washington, D. C., with whom Rufus King, III, Washington, D. C., was on the brief, for appellant.

Barry E. Cohen, Washington, D. C., with whom Roger E. Zuckerman, Roger C. Spaeder, Richard A. Stanley, and Wendy K. Manz, Washington, D. C., were on the brief, for appellees.

Before TAMM * and WALD, Circuit Judges, and PHILIP NICHOLS, Jr., ** Judge, United States Court of Claims.

Opinion for the court filed by Circuit Judge TAMM.

Opinion filed by Circuit Judge WALD, concurring in part and dissenting in part.

TAMM, Circuit Judge:

With this action we are called upon to review yet another canto in the seemingly ceaseless saga of Watergate. Plaintiff James McCord, Jr., sued his criminal trial attorneys, defendants F. Lee Bailey, Gerald Alch, and the firm of Bailey, Alch & Gillis, for malpractice, conspiracy to represent incompetently, and conspiracy to deprive civil rights. The district court granted defendants' motion for summary judgment. McCord appeals. We agree with the district court that either collateral estoppel or McCord's failure to show that he has suffered any legally cognizable injury precludes McCord's malpractice action; we also believe, however, that McCord may have a colorable claim under the first clause of 42 U.S.C. § 1985(2) (Supp. II 1978). We therefore reverse the decision of the district court and remand the case for further proceedings not inconsistent with this opinion.


In June of 1972, Washington's Metropolitan Police arrested McCord with four others at the Democratic National Committee headquarters. McCord was tried in federal district court, and eventually convicted of burglary, possession of intercepting devices, interception of oral and wire communications, and conspiracy to commit these offenses. McCord then petitioned the trial court for relief in the nature of a writ of error coram nobis, raising in part allegations of ineffective counsel at the criminal proceedings. McCord claimed that his attorneys had been disloyal because they discussed his case with attorneys for the other defendants and with some of McCord's co-conspirators, because they failed to cross-examine key government witnesses with sufficient vigor, and because they did not raise a defense of official authorization for McCord's acts. The district court denied McCord's petition in late 1973. McCord appealed this decision and his conviction the following year, repeating his claim of ineffective assistance of counsel as one ground for reversal. This circuit, sitting en banc, discussed these contentions in detail, found them meritless, and affirmed the conviction. See United States v. McCord, 509 F.2d 334, 343-45, 351-53 (D.C.Cir. 1974) (en banc), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975).

In August of 1975, McCord sued his criminal trial attorneys on four counts: negligent and careless representation, intentionally incompetent representation, conspiracy to represent incompetently, and conspiracy to deny McCord his constitutional and statutory rights. After more than two years of extensive discovery, the defendants moved for summary judgment. The district court granted this motion, finding that collateral estoppel barred plaintiff's claims, or alternatively, that plaintiff lacked a legal injury for which relief could be granted. Plaintiff McCord appeals that judgment.


Collateral estoppel "prohibits parties who have litigated one cause of action from relitigating in a second and different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation." Tutt v. Doby, 459 F.2d 1195, 1197 (D.C.Cir. 1972). See Nasem v. Brown, 595 F.2d 801, 805 (D.C.Cir. 1979); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, April 15, 1977). Like res judicata, collateral estoppel promotes judicial efficiency. As the Supreme Court has noted a party who has had one fair and full opportunity to prove a claim and has failed in that effort should not be permitted to go to trial on the merits of that claim a second time. Both orderliness and reasonable time saving in judicial administration require that this be so unless some overriding consideration of fairness to a litigant dictates a different result in the circumstances of a particular case.

Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 324-25, 91 S.Ct. 1434, 1440, 28 L.Ed.2d 788 (1971) (quoting Bruszewski v. United States, 181 F.2d 419, 421 (3d Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950)). For this doctrine to apply, the same issue must be at stake in both cases, and the issue must have been litigated and decided in the first suit. 1

McCord's allegations in this case encompass in all material respects the same claims he presented in his coram nobis petition and his criminal conviction appeal. These claims center on ineffective assistance and intentional betrayal. Though in his civil case he couches his claims primarily in tort, he raises no new material contentions. 2

Furthermore, the legal standards for ineffective assistance of counsel in McCord's criminal proceedings and for legal malpractice in this action are equivalent. At the time of McCord's criminal appeal, this court defined ineffective assistance of counsel as the denial of a defendant's entitlement "to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." United States v. DeCoster (DeCoster I), 487 F.2d 1197, 1202 (D.C.Cir. 1973). The concept of reasonable competence is also the standard "traditionally and universally employed as the measure of the lawyer's civil liability ...." United States v. DeCoster (DeCoster III), 624 F.2d 196 at 249 (D.C.Cir. 1979) (Robinson, J., concurring), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979). See Marzullo v. Maryland, 561 F.2d 540, 544 & n.9 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978); Gard, Ineffective Assistance of Counsel-Standards and Remedies, 41 Mo.L.Rev. 483, 495-96 (1976). See also McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); Restatement (Second) of Torts § 299A (1965); Bines, Remedying Ineffective Representation in Criminal Cases: Departures from Habeas Corpus, 59 Va.L.Rev. 927, 937 (1973).

Given the similarity of both the facts in issue in this case and the applicable legal standards, estoppel may be considered if these issues were actually litigated in McCord's criminal proceedings. 3 McCord asserts that they were not. He claims that a proper evidentiary hearing did not take place during consideration of the coram nobis petition or on appeal, thus denying him the opportunity to develop the facts of his case fully. We disagree.

A hearing need not be held for collateral estoppel to apply. When the facts are undisputed or accepted as true, a hearing would serve no purpose. Disposition by summary judgment will suffice, for example, because "there is no issue of material fact and ... the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c). See Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 110, 115-16 (5th Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976). In McCord's criminal appeal we accepted all of McCord's factual assertions as true, but still rejected his contentions. See United States v. McCord, 509 F.2d 334, 352 nn. 65-66 (D.C.Cir. 1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975). Having accepted McCord's factual assertions, a hearing now would amount to little more than a "useless ritual." Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d at 115.

Estoppel is not inappropriate because a contested issue is first raised after trial. McCord first asserted his ineffective assistance of counsel claim in his motion for a writ of error coram nobis. See Supplemental Memorandum on Points and Authorities in Support of Motion in the Nature of a Writ of Error Coram Nobis at 2, United States v. McCord, Crim. No. 1827-72 (D.D.C. Aug. 9, 1973). 4 Judge Sirica denied the motion after considering the parties' memoranda and arguments. United States v. McCord, Crim. No. 1827-72 (D.D.C. Nov. 7, 1973) (order denying writ of error coram nobis). On appeal, the parties fully briefed the issue, and it received a full discussion from this court. See United States v. McCord, 509 F.2d at 351-53. Thus McCord has already litigated the issue twice and lost, see Rosenberg v. Martin, 478 F.2d 520, 565 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973), making defensive invocation of collateral estoppel appropriate, see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329-31, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971). 5

Moreover, the circumstances of this case particularly favor invocation of collateral estoppel. McCord had every incentive in his criminal proceedings to argue aggressively for his claim of ineffective assistance of counsel. As noted above, he had a full and fair opportunity to prove his case. Precluding reconsideration of a litigated claim saves valuable judicial time and resources, while reaffirming the certainty and stability of judicial decisions. See Johnson v. United States, 576 F.2d 606, 609-19 (5th Cir. 1978). Furthermore, estoppel saves Bailey, Alch, and their former law firm from the burden of defending a lawsuit on an issue that has...

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