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Sued asbestos firm says former clients are off limits

By John O'Brien | May 25, 2011

Robert Peirce

WHEELING, W.Va. (Legal Newsline) - A Pittsburgh asbestos law firm says its relationship with former clients is ongoing and the company suing it for fraud should not be allowed to contact them.

On Monday, the firm Peirce, Raimond and Coulter replied to CSX Transportation's argument that it should be allowed to speak to former clients because they are no longer represented by the firm. CSX claims the firm conspired with radiologist Ray Harron to fabricate asbestos claims.

In April, the Peirce firm asked U.S. District Judge Frederick Stamp to prohibit contact between CSX and its former clients, as well as obtain a list of those already contacted. CSX filed its response brief earlier this month.

"CSX fails to recognize, address, or even acknowledge the crucial and uncontradicted record fact that is most relevant to the instant issue: representation of clients with regard to 'third-party' asbestos-related claims is, by its very nature, an on-going relationship because a 'client may have potential claims become available due to the creation of new third-party asbestos manufacturer bankruptcy trusts or because of the expansion of the type of or requirements for claims allowed by current trusts,'" the firm's reply brief says.

"Thus, even if a client does not have a presently pending third-party claim, the Peirce firm continues to have an attorney-client relationship with the client as to asbestos-related claims because 'additional claims may be brought in the future if (a client) become(s) eligible to assert additional claims against, for example, new or existing third-party asbestos manufacturer bankruptcy trusts.'"

CSX wrote in its May 6 response that Peirce's stance is "vigorously argued" but incorrect.

"The Lawyer Defendants ignore that, on its face, Rule 4.2 of the West Virginia Rules of Professional Conduct only applies when the person with whom the lawyer seeks to communicate is currently represented by counsel."

Stamp once closed the case, but the U.S. Court of Appeals for the Fourth Circuit ruled that CSX did not miss the statute of limitations when filing the case. Discovery is stayed while Robert Peirce pursues an appeal of that decision to the U.S. Supreme Court.

CSX's complaint said Peirce hid nine fraudulent claims among other lawsuits filed by the law firm in West Virginia.

The complaint noted that radiologist Ray Harron, who was found by a Texas federal judge in 2005 to have created fradulent silica claims, lost his license in 2007. Many of the Peirce firm's diagnoses were made by Harron.

The nine lawsuits were filed and settled from 2000-2006. Stamp ruled the four-year statute began when the Peirce firm began targeting CSX.

Allegations arising out of Peirce's representation of Earl Baylor were found to have been timely made. One of the lawsuits CSX tried to include in its second amended complaint was filed with the Baylor claim.

After the case returned to Stamp, CSX claim handler Greg Howard contacted Donald Wiley, who filed one of the suits CSX planned to add to the complaint. Wiley told Howard that Peirce still represented him, and the conversation ended.

Wiley reported the contact to Peirce, who asked Stamp to prohibit further contacts.

On April 6, the attorney representing the Peirce firm wrote, "To leave the clients in an uncounseled situation in which admissions related to the clients' past, present or future claims could be made would, we submit, be a dereliction of the Peirce Firm's duties and obligations to those clients."

He wrote that CSX must contact clients through the firm, rather than directly and that "improper contacts in this case were initiated as part of an investigation with the intention of using the resulting information in litigation in a way which might be detrimental to the improperly contacted person."

The Peirce firm's clients had signed a Power of Attorney Agreement that CSX argues does not prevent it from talking to former clients.

In July, Circuit Judge Arthur Recht ordered the dismissal of 1,400 asbestos claims. He had implemented new rules requiring plaintiffs to certify they were aware of their lawsuits, that their claims were "well-founded in fact" and that they wished to continue pursuing litigation.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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