Insurer Ordered to Defend Attorney's COVID Vaccine Lies

• Pages: 26-26
• Date: 01 October 2024
• Author: Ryan E. Shiverdecker
• Subject Matter: Civil Law

counsel may have believed it was rea-

sonable to rely on a sophisticated tech

company like Google to vet the suf-

f‌iciency of preservation methods, this

decision highlights the ever-growing

demands on litigation counsel to edu-

cate themselves in this area and take

nothing for granted,” he emphasizes.

Insurer Ordered to

Defend Attorney’s

COVID Vaccine Lies

By Ryan E. Sh iverdecker, Litigation

News Contributing Editor

A professional liability insurer must

defend an insured attorney against

judicial sanctions stemming from the

attorney’s misrepresentation of his

COVID-19 vaccination status during

federal court proceedings. The court

determined that the attorney’s alleged

misconduct was ‘clearly’ committed

while engaged in and furthering the

aairs of his client. ABA Litigation

Section leaders believe that this case

underscores the discretion aorded

courts when interpreting insurance pol-

icy language and they warn litigators

that similar circumstances could result

in dierent outcomes.

In Cooperstein v. Scottsdale Ins. Co.,

the U.S. District Court for the Southern

District of Mississippi was asked to

determine whether the insuring lan-

guage in a professional liability policy

entitled a U.S. assistant attorney to a

defense against judicial sanctions pro-

ceedings stemming from the attorney’s

misrepresentations of his vaccination

status before a federal district court.

The attorney appeared before a

federal court on at least four occa-

sions during the COVID-19 pandemic.

On three of those occasions, he mis-

represented his vaccination status by

indicating to the court that he was vac-

cinated. Only on the fourth appearance

did he admit that he was not vacci-

nated. Several weeks after his admis-

sion, the district court issued a show

cause order directing the attorney to

explain why he should not be sanc-

tioned. In addition, the U.S. Department

of Justice’s Oce of Professional

Responsibility (DOJ) opened an inves-

tigation into the attorney’s inconsistent

responses in court.

The attorney submitted a claim to

his insurer, seeking defense against

both his judicial sanctions proceed-

ings and the DOJ investigation. The

insurer denied coverage, claiming that

the attorney’s misrepresentation of his

personal medical status to the court

did not constitute the furthering of

the aairs or services of the federal

government as required to trigger a

defense under the policy.

The attorney sued his insurer seek-

ing, among other claims, a declaratory

judgment holding that the policy cov-

ered the cost of defense related to the

show cause proceedings and the DOJ

investigation. Both parties moved for

summary judgment.

Under Mississippi law, an insurance

policy is subject to general rules of

contract interpretation. Further, the

policy language is strictly construed

against the insurer. Applying this law,

the court compared the allegations in

the complaint against the policy lan-

guage. Finding the policy language to

be clear and unambiguous, the court

then examined whether the attorney’s

misrepresentations were made while

engaged in and furthering the aairs or

services of the federal government.

Ultimately, the court sided with the

insured attorney, concluding that the

misrepresentations were “committed

while he was rendering services within

the course and scope of his employ-

ment and while he was engaged in and

furthering the aairs or services of the

United States.”

“This was a very nuanced disagree-

ment about the meaning of a single

phrase in the policy,” admits John C.

Bonnie, Atlanta, GA, Co-Chair of the

Litigation Section’s Insurance Coverage

Litigation Committee. Section lead-

ers agree that this decision illustrates

the considerable latitude that courts

have when determining the meaning of

policy language and whether it is clear

and unambiguous. “This was a decision

that really could have gone either way,

at least on the insuring agreement of

the policy,” Bonnie opines.

“This case may signal an expan-

sion of what falls within the def‌inition

of “furthering the aairs or services”

of one’s employer,” suggests Tiany

Rowe, Washington, DC, Co-Chair of

the Section’s Professional Liability

Litigation Committee. Additionally, she

sees this case as an admonition to law-

yers tempted to deceive others in the

course of their practice. An attorney

is expected to “maintain honesty and

integrity from the minute you are on

the steps of the courthouse,” stresses

Rowe. “Representation is not limited to

the words uttered during the prosecu-

tion or defense of your case,” she con-

cludes.

Arbitration

Compelled Based

on Unsigned Fee

Agreement

By Leah E. Trahan , Litigation News

Contributing Editor

A state court of appeals upheld an

order compelling arbitration between a

law f‌irm and its client based on a provi-

sion in an unsigned fee agreement. The

court reasoned that the agreement’s

execution provision did not require a

signature and the parties had “reaped

many benef‌its” of the agreement. ABA

Litigation Section leaders approve of

the decision but suggest that addi-

tional steps on the part of the law f‌irm

may have averted some litigation.

In Zimmerman v. Sherman, the

plainti engaged the defendant law

f‌irm to assist with the purchase of real

property. The f‌irm’s fee agreement

explained that, while the f‌irm might be

engaged on other future matters, the

initial engagement was limited to that

purchase. The agreement included an

arbitration clause covering “any contro-

versy arising out of or related to” the

attorney-client relationship. The agree-

ment warned that the client’s right to

a jury trial was waived “[b]y executing

and returning this agreement,” but also

said that it would govern the parties’

relationship “[e]ven if you elect not to

return a signed agreement to us.”

The buyer did not sign the fee agree-

ment and proceeded to form a corpora-

tion for the property transaction, which

the f‌irm helped set up. Later, the buyer

again engaged the f‌irm to negotiate a

contract between the corporation and a

renovator of the property. When reno-

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