Complaint details unethical conduct by asbestos attorneys

By Nathan Bass | Jul 5, 2013

SAN FRANCISCO (Legal Newsline) - A former associate at the law firm Brayton Purcell LLP has filed a complaint in the California Superior Court against the firm and its founder, Alan R. Brayton.

The 45-page complaint, which at times reads like the script for a legal thriller, contains numerous allegations of gross unethical conduct by Brayton and other unnamed defendants.

The complaint was filed July 1 by Plaintiff Christopher Andreas in the Superior Court of the State of California, County of San Francisco. Defendants are Brayton Purcell LLP, Alan R. Brayton, the founding member and senior partner of the firm, and John Does 1-10.

Christopher Andreas was hired as an associate with the firm by Brayton in 1995, according to the complaint. The principal focus of Brayton's law practice had been the representation of individuals damaged by workplace exposure to toxic substances, primarily related to asbestos exposure.

Andreas was hired with the express understanding that Brayton would be responsible for covering him with legal malpractice insurance and during the first five years this coverage was provided by a traditional third-party legal malpractice insurer, the complaint says.

Within two years of hiring, Andreas was assigned to the designated trial division of the firm. This was a small group of attorneys whose sole responsibility was to try the firm's cases. Andreas worked exclusively in this capacity until he was terminated in 2008.

A separate department in the firm was dedicated solely to the preparation and filing of bankrupcy claim forms on behalf of the firm's clients. These forms were filed with various Asbestos Settlement and/or Bankruptcy Trusts, often referred to as "Asbestos Trusts" or "Settlement Trusts."

Importantly, during the last 10 years of his employment, Andreas states, he had "virtually no involvement with Defendants' cases until they were assigned to the trial department." In other words, he had no involvement in the preparation and filing of the claims.

According to the complaint, about five years after Andreas became employed by the firm, Brayton announced he no longer would pay for third-party malpractice insurance but the firm would be self-insured instead. He assured the associates that money would be set aside in an account specifically earmarked for malpractice defense and indemnity purposes.

Brayton further promised the assoicates, Andreas asserts, that their "malpractice defense coverage and indemnity rights would not be altered, qualified or diminished in any way by this development," and he made further assurances along those lines.

The complaint devotes several pages to the revival of the Western Asbestos Company by Brayton and the "goal, laudable on its face" to uncover Western's untapped liability insurance coverage policies so that asbestos victims could receive compensation.

The net result of this process was the "accumulation of hundreds of millions of dollars in default judgments in favor of Defendants' clients" which were subsequently paid out of the roughly $2 billion in settlements obtained from several Western insurer defendants that were place in the Western Asbestos Settlement Trust. Brayton was on the advisory board of the Western Trust, the complaint says.

Andreas was assigned to a case in state court in Cleveland, Ohio, in late 2003. Prior to his involvement, the firm had become aware of erroneous claim form information upon which a judgment in the case had been obtained. The firm, at Brayton's instruction, had identified the mistake to the JM Trust and offered to refund what had been received by the firm and its client from this particular trust.

According to the complaint, Brayton did not advise the Western Trust or offer to refund the hundreds of thousands of dollars the firm and client had received in error from this trust. Andreas contends that he had "absolutely no involvement" in these actions and inactions.

While the Ohio case was pending, the claim form errors as well as other issues with evidence were raised by opposing counsel. Andreas was forced to try and "explain, justify and otherwise defend the actions and/or omissions" of other firm employees and employees from another firm that had referred Brayton Purcell the case, the complaint says.

"Opposing counsel filed motion after motion, distorting the record and morphing what had been, aside from the JM and Western claims, relatively innocuous errors and omissions by certain staff members and senior associates ... into egregious examples of alleged miscounduct, all of which allegations were directed at Plaintiff, the only attorney from either law frim present in Ohio."

Although Andreas withdrew from the case, he was wrongfully accused in "the Ohio Order" of multiple acts of misconduct related to the proceedings. The firm as a whole was cited as well. Andreas immediately self-reported the matter to the California State Bar, although he contended the Ohio Order findings were "misplaced and false." The California Bar initated an investigation.

The incident drew negative press, locally and nationally, and Andreas was forced to retain the services of a California attorney and specialist in disciplinary matters as well as an Ohio attorney. Andreas asserts that the negative press was "extremely damaging" to his reputation in the legal community.

Andreas approached the firm and requested that they provide indemnification for the legal fees and costs he would be incurring to clear his name. Brayton, the complaint says, misled Andreas into believing that no such arrangement was possible without invading the attorney-client privilege between Andreas and the firm.

After much back and forth, Brayton eventually agreed to allow Andreas to continue to be paid his salary in full while he worked exclusively on the Ohio and California matters, but also part-time on the firm's asbestos cases.

Subsequent to this arrangement, the firm also retained counsel to challenge the Ohio Order. In August of 2007, the firm filed a Notice of Appeal and Memorandum in Support of Jurisdiction with the Ohio Supreme Court. This filing was done without noticing Andreas, in violation of their agreement to copy each other with any appellate filings made in the matter.

Andreas listed these and other exerpts from the Memorandum in the complaint:

According to the Court, Attorney Andreas was found to have engaged in a number of deceptive and unethical practices. Id. None of the fifty-three other partners and associates of Brayton Purcell were determined to have done anything inappropriate. To the contrary, the case against Attorney Andreas was built partly upon the candid testimony of one of the firm's principals, Alan Brayton, Esq.
Brayton Purcell's substantial stake in the proceedings became apparent the moment the startling Order & Opinion was issued on January 18, 2007. All of Judge Hanna's findings of misconduct involved Attorney Andreas. No evidence was cited suggesting that he had been engaging in any misconduct with the knowledge and blessing of Brayton Purcell management.
Andreas asserts that the Ohio Order was "replete with conduct specific findngs that had nothing whatsoever to do with [Andreas] and for which he bore no responsibility," and that the only truthful statement in the Ohio Memo was that he was "licensed to practice law in California and was a member of Brayton Purcell" but not a partner with ownership interest.

Needless to say, the relationship between Andreas and the firm and its principals, especially Alan Brayton, continued to deteriorate. There are numerous conflicts and breaches over compenstation, indemnification, and the paying of attorney fees alleged in the complaint.

Andreas asserts causes of action for failure to reimburse expenses related to the cost of his defense, breach of written contract, breach of common law fiduciary duty, and unfair business practices.

He asks for penalties under California labor laws, general and special damages, restitution, punitive damages, interest, attorneys fees related to this action, and "for such other and further relief as the Court deems just and proper."

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