[00:00:03] Speaker 00:
Case number 15-7053, Nieves Rocha as the personal representative of the estate of Oscar Rocha, deceased, appellate versus brown and gold, LFENL.

[00:00:14] Speaker 00:
Ms.

[00:00:14] Speaker 00:
Ensling for the appellate, Mr. Schraub for the appellate.

[00:00:22] Speaker 04:
Good morning and may it please the court.

[00:00:25] Speaker 04:
The threshold issue that the court must decide in this appeal is one of the statute of limitations.

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And the issue that the court must decide is whether the District of Columbia's three-year statute of limitations that governed Mrs. Roca's legal malpractice claim was followed by the defendant's continuous representation of her through June 28, 2011.

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In the limited time that I have here today, I think it's important for the court to focus on several documents in the record that I think are dispositive of the issue before the court.

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Are you talking about count one?

[00:01:04] Speaker 04:
Yes, I'm sorry.

[00:01:07] Speaker 02:
Count one?

[00:01:09] Speaker 04:
All of the counts in the complaint.

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There was a summary judgment granted by the district court on all counts.

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The key document is in the appendix at page 279, which is a letter that

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Defendant Brown wrote on May 20, 2011.

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And let's remember where we are on May 20, 2011.

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Mr. Brown and Defendant Littman were retained by Mrs. Roke on February 10, 2009 to represent her in an asbestos case.

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A case was found in the District of Columbia Superior Court.

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Discovery proceeded.

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Evidence of exposure to asbestos was induced in the District of Columbia, Virginia, as well as an interrogatory answer as evidence of exposure in Maryland.

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Georgia Pacific filed a motion for summary judgment at the close of discovery asserting that the case was time barred under the District of Columbia's special statute of limitation that pertains to asbestos claims, DC Code 12311, which essentially says that an asbestos case has to be brought within one year when a asbestos victim becomes disabled from asbestos disease.

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And in Mrs. Roca's case, it was her husband Oscar who was diagnosed with mesothelioma, cancer only caused by asbestos, on February 22nd, 2006.

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And his statute of limitations in the District of Columbia would have expired on February 22nd, 2007.

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So the point that George Pacific made was that, that Mr. Oka's case, his survival action brought by his wife was time barred.

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And the Superior Court granted that motion on January 10, 2011.

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An appeal was immediately filed by Mr. Brown in the D.C.

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Court of Appeals.

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The D.C.

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Court of Appeals Chief Judge Washington, in surveying the record, noted that there was a defendant who was still remaining in the Superior Court of Action, Bondex, issued a show cause order and directed that

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and the parties addressed this issue of whether the Superior Court judgment was final.

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Briefing was had, and finally the appeal was dismissed as untimely.

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And Mr. Brown and Mr. Littman returned to the Superior Court, obtained an order dismissing bond ex and a final order, and then

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Which brings us to this point in time.

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All of these events that were taking place occurred under the first retainer agreement that Mr. Brown and Mr. Littman had.

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And then the parties then reach a point where Mrs. Roke had the need to decide whether she would continue the case to proceed with the appeal and to have her superior court counsel, Mr. Brown and Mr. Littman, continue to represent her.

[00:04:47] Speaker 04:
And on May 20, 2011, Mr. Brown wrote to Mrs. Roca and sent a letter to her by FedEx in which he says, at this point in time, he says, quote, this concludes our representation of you at the trial level in this matter.

[00:05:06] Speaker 04:
So what this letter shows is that throughout this period from February 10, 2009 to

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May 20, 2011, Mr. Brown believed that he was representing her as he was under the terms of the first retainer agreement.

[00:05:24] Speaker 02:
Let me ask you this.

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Suppose you're right about the statute of limitations.

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The district court gave several other reasons for summer judgment on count one.

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Right?

[00:05:36] Speaker 04:
That's correct.

[00:05:37] Speaker 02:
OK.

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And one of them that I want to ask you about is that

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is that the defendant had moved the summary judgment on the grounds that the plaintiff hadn't established that their failure to file in Maryland was the approximate cause of her injury.

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That was one of defendant's arguments.

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And the district court, and this is one of the reasons he granted summary judgment, was that

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plaintiff had effectively ignored this argument and had therefore, quote, conceded the issue.

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And then here in your blue brief, it's not raised.

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So why isn't this?

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Why isn't this issue forfeited and we can affirm on that ground alone?

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I did raise this issue in our opening brief as well as in our reply brief.

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Do you disagree that the district courts

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conclusion that it was conceded?

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I completely disagree with it, and I point the court as I did in my opening brief to pages 47 and 48 of the apposition brief that I filed in the history court, and I'll quote exactly what I said there, comes at the end of the brief.

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say this, lasting defendants make much of the fact that Amato, my expert, did not criticize Brown for... What page you want and which brief?

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This is pages 47 and 48 of the brief.

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It's document in the district court, document 43, filed

[00:07:27] Speaker 02:
Well, you're reading from the district court brief now?

[00:07:30] Speaker 04:
I'm reading from my district court brief, which I cite.

[00:07:33] Speaker 04:
OK.

[00:07:33] Speaker 02:
What about here?

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Pardon?

[00:07:35] Speaker 02:
What about here?

[00:07:36] Speaker 04:
You blew brief here.

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Where do you make the argument here in the Bloomberg?

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I might have missed it.

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Just tell me where it is.

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I'm not sure on what page it appears.

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Why don't you find it for me now?

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I totally can see it.

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I may have missed it.

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But now's your time to show me that.

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I cite to it on page 19, footnote 35.

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Which says what?

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Is the reference.

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What does that say?

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And also on page 20.

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What does that say?

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On page 20, I say this.

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Likewise, the B and G defendants and later the district court's contention that Mrs. Roca had allegedly conceded judicial immunity of offense by purportedly not responding to their argument.

[00:09:04] Speaker 02:
That's a different issue.

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Is that the proximate cause question?

[00:09:09] Speaker 04:
Well, that is the proximate cause question, yes, because it's interwoven with the judicial immunity defense.

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And that's what I was trying to read to you.

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Why is that?

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I'm not sure I understand that.

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I thought the proximate cause argument was that there was no evidence that the defendants were the ones who produced the evidence.

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the product allegedly caused the injury.

[00:09:34] Speaker 04:
That's not an issue here about product identification.

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It's not?

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How could you possibly win without it?

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I don't understand.

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Who in Maryland would you sue successfully?

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Who has, if you couldn't win in Maryland, then there's no liability for not filing it.

[00:09:51] Speaker 04:
No, we make two arguments and it's throughout the brief that the wrongful death claim was actionable in Maryland under the barring statute without proof of exposure to asbestos in Maryland.

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There are two different claims here.

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There's a survival action which, you're correct, under the borrowing statute would require proof of exposure in Maryland.

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You can see that.

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But what Mr. Amato, the expert in this case, said, that the borrowing statute makes a specific exception to wrongful death cases and that wrongful death cases in Maryland do not require proof of exposure in Maryland.

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The issue of whether, for example, there was personal jurisdiction over all of these defendants in the case was conceded by Mr. Brown in deposition.

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He could have sued them in Maryland.

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Jurisdiction in terms of personal jurisdiction over the asbestos manufacturing defendants was not an issue.

[00:10:48] Speaker 05:
That's the whole point.

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So if your client had never been in Maryland and had never worked with asbestos in Maryland,

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You can still see success.

[00:10:55] Speaker 04:
Yes.

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And I tell you, and it's interesting if you look at if you look at the Maryland borrowing statute, it it it it cars out an exception.

[00:11:09] Speaker 04:
Tell me what it says.

[00:11:12] Speaker 04:
Well, it's a lengthy statute, but the... Tell me what the relevant part of it says.

[00:11:17] Speaker 04:
I'll read it to you.

[00:11:19] Speaker 04:
If a cause of action against a manufacturer or seller of a product, a personal injury allegedly caused by a defective product, arose in a foreign jurisdiction, and by the laws of that jurisdiction the cause of action

[00:11:32] Speaker 04:
may not be maintained by reason of lapse of time, and action may not be maintained in this state, except in favor of one who is a resident of this state.

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It goes on to say, application of this section.

[00:11:46] Speaker 05:
This section may... What did you say again in that last part, read the last few words?

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except in favor of one who was a resident of this state.

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So in other words, if Mrs. Roca had lived in Maryland and her husband had been exposed to asbestos only in DC, she could bring an action under District of Columbia law in Maryland.

[00:12:08] Speaker 05:
But she didn't live in Maryland, did she?

[00:12:09] Speaker 05:
She did.

[00:12:10] Speaker 05:
She did?

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She did not.

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She did not live in Maryland.

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But I'm simply saying that Maryland, under this statute, for example,

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even where there is no exposure in Maryland, would permit an action.

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If she were a resident of Maryland.

[00:12:23] Speaker 04:
That's right.

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But then she wasn't a resident.

[00:12:25] Speaker 04:
No.

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But the statute goes on to say this.

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This section may not be applied to a cause of action that was for wrongful death described under section three, subtitled nine of this article.

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So it carves out two exceptions.

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It carves out an exception for residents of the state of Maryland, and it carves out an exception for wrongful death claims.

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So it was possible to bring a wrongful death claim based on District of Columbia law in Maryland the day that Mrs. Roca walked into Mr. Brown's office, because there was still 12 days left.

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12 days left on Maryland's discovery statute of limitations.

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Maryland has a three-year statute of limitations discovery statute for asbestos claims.

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But I think the point, too, that the trial court, in terms of this waiver issue, because it's an important issue, and I agree completely that it is,

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And the court, I think, suggested that we had conceded the judicial immunity issue in the case, which we hadn't.

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And this is the quote that I wanted to read to you.

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Lastly, defendants make much of the fact that Armando did not criticize Brown for his affirmative decision to file in both Virginia and District of Columbia.

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They somehow postulate that from that lack of criticism, from his decision to still file, and consequently his decision, if he even had entertained one at all, not to file in Maryland, were all exercises of professional judgment.

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that are not subject to second guessing by an expert.

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That is a total distortion of model's opinions.

[00:14:21] Speaker 02:
A model found... Okay, we've got it, and you're well over time.

[00:14:25] Speaker 02:
Thank you.

[00:14:26] Speaker 02:
And you're out of time, so we'll give you a minute on the bottle.

[00:14:30] Speaker 04:
Thank you, Your Honor.

[00:14:42] Speaker 03:
Good morning, Your Honors.

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May it please the Court.

[00:14:45] Speaker 03:
My name is Jonathan Schraub.

[00:14:46] Speaker 03:
I represent the appellees Brown and Gould and Daniel Brown.

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Your Honors, there are multiple, multiple independently sufficient bases to affirm the decision of the District Court.

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But I do want to say one thing to begin with with regard to the question Judge Sentel asked.

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The response of Mr.

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of Mr. Ensline was that it was possible, because our commitment is that it was possible to bring a suit in Maryland.

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We frankly disagree with that.

[00:15:21] Speaker 06:
The thrust of that second so-called accepting paragraph can be read.

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The point is that there was disputed law in all three jurisdictions.

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In Maryland, as to how they would apply their own statute to the D.C.

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borrowing statute.

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In D.C., as to how they were going to apply the D.C.

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statute of limitations after the opinions in Henkel and Gwire, which indicated that they would not be used.

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to limit the time, and that there would be a three-year time period.

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And in Virginia, as to whether or not the statute of repose would apply in connection with whether asbestos becomes a fixture.

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So there were questions abounding in this.

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But the most Mr. Ensling can ever say is that it was possible to bring a suit in Maryland.

[00:16:06] Speaker 03:
This suit is not about our suit.

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This suit here is not about what was or wasn't possible.

[00:16:11] Speaker 03:
This suit is whether or not the standard of care mandated that you must bring a suit in Maryland on pain of being hauled into court for legal malpractice, not whether it was possible under some convoluted argument that somebody might make, somebody else might disagree with, and an informed judgment.

[00:16:29] Speaker 03:
A professional judgment would be made as the record undisputedly shows Mr. Brown did.

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considering all of the pros and cons of each jurisdiction.

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And we laid them out in our brief.

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And Mr. Brown laid them out in his affidavit below, which is the supplemental appendix, the multiple pros and cons of each jurisdiction.

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And having decided that, and faced with the fact that there was no evidence of exposure in Maryland, that nobody lived in Maryland, he decided it was best to bring the suit in DC, bring a backup suit in Virginia.

[00:17:05] Speaker 03:
fully expecting that DC would abide by the existing guiding precedent, which wasn't binding, but it was guiding, as to how the DC asbestos statute would be interpreted, and it would be interpreted liberally and in favor of a claim such as Mrs. Rokas.

[00:17:21] Speaker 03:
It did not turn out that way.

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The DC Court of Appeals did not view the statute that way.

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But of course, we also know that a lawyer is not liable for malpractice based upon the failure to predict how a court of appeals will ultimately decide a previously undecided issue of law.

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In this case, this case dispositively goes off all of the counts.

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The first count and the third count go off on statute of limitations.

[00:17:50] Speaker 02:
Why count three?

[00:17:52] Speaker 03:
I'm sorry?

[00:17:52] Speaker 02:
Why count three?

[00:17:54] Speaker 03:
The legislative count?

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Yeah.

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Because damage occurred in that count, whatever damage they allege occurred in January 2011.

[00:18:04] Speaker 03:
when the DC Superior Court advised Mrs. Roka, actually in December 2010, orally in court where she was present, but then by order in January of 2011.

[00:18:16] Speaker 02:
What about the application of a continuous representation rule there?

[00:18:21] Speaker 03:
The continuous represent... Well, first of all, with respect to the legacy... Why didn't that have told it?

[00:18:25] Speaker 03:
No, because continuous representation doesn't apply to a straight negligence claim.

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The claim in Count 3 is not a professional liability claim.

[00:18:32] Speaker 03:
It's a straight north and south negligence claim under the theory of Good Samaritan activity, volunteer undertaking.

[00:18:40] Speaker 03:
There is no continuous representation rule with respect to that.

[00:18:44] Speaker 03:
Continuous representation only applies to professional liability.

[00:18:47] Speaker 02:
Well, I'm not sure why not.

[00:18:48] Speaker 02:
I beg your pardon?

[00:18:49] Speaker 02:
Just explaining again why it wouldn't apply.

[00:18:51] Speaker 02:
Because the continuous representation moved.

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It was the same matter.

[00:18:55] Speaker 02:
You can argue it's the same matter.

[00:18:57] Speaker 03:
Well, it was and it wasn't.

[00:19:02] Speaker 02:
Well, let's assume it was.

[00:19:04] Speaker 02:
So the matter being recovering for the death of plaintiff's husband.

[00:19:09] Speaker 03:
That's the matter.

[00:19:12] Speaker 03:
If you interpret the matter that broadly, but then you go back to the situation that there was no agreement to do this.

[00:19:19] Speaker 03:
This was done, the theory the plaintiff finally advanced after hopscotching through 100 theories, the theory that was finally advanced, not in a pleading, but in deposition by this expert,

[00:19:32] Speaker 03:
was that, gee, this isn't anything the plaintiff has already said it was.

[00:19:36] Speaker 03:
This isn't a written contract.

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This isn't an oral contract.

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This isn't promissory estoppel.

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This is none of the theories that were advanced by the plaintiff, his expert says.

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What this really is in his deposition is voluntary undertaking, good samaritan.

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And that is where this finally came to rest.

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There is no precedent that the plaintiff

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The continuing representation rule applies to a claim of voluntary undertaking.

[00:20:04] Speaker 03:
There was no continuing representation with respect to voluntary undertaking.

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It was done, finished, and complete in January when the DC Superior Court said that there was no retroactive application of the statute.

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There was nothing more to continue to do.

[00:20:22] Speaker 03:
There was no more representation to be had on that.

[00:20:25] Speaker 03:
The damage was done.

[00:20:27] Speaker 03:
At that point, the statute of limitations on that count begins to run.

[00:20:31] Speaker 03:
It begins to run, and it obviously expired three years later, well before the suit was filed.

[00:20:39] Speaker 06:
unusual theory of proximate cause to make them liable for this, even if the statute hadn't run.

[00:20:44] Speaker 03:
There's no theory, he said.

[00:20:46] Speaker 06:
There's no theory of proximate cause because Mr. Obama... There's the harm if it results from the failure of a legislative body to take action.

[00:20:56] Speaker 06:
And the legislative body is not under the control of the defendants.

[00:20:59] Speaker 06:
That's correct.

[00:21:00] Speaker 03:
And Mr. Amato said it.

[00:21:01] Speaker 03:
We've got that.

[00:21:02] Speaker 03:
It's in our brief.

[00:21:03] Speaker 03:
Mr. Amato said that Mr. Brown has no control.

[00:21:06] Speaker 03:
Has no control over what the legislative body may or may not do if confronted with a proposed statute that they were never confronted with.

[00:21:15] Speaker 03:
He says that.

[00:21:17] Speaker 02:
Suppose I... This is just a hypothetical.

[00:21:20] Speaker 02:
Suppose...

[00:21:21] Speaker 02:
Suppose I think that the continuing representation rule does apply.

[00:21:28] Speaker 03:
Just the hypothetical.

[00:21:29] Speaker 02:
Just the hypothetical.

[00:21:30] Speaker 02:
I promise.

[00:21:32] Speaker 02:
Then the question is, the district court says, well, there was no physical damage.

[00:21:38] Speaker 02:
Yes.

[00:21:38] Speaker 02:
Right?

[00:21:40] Speaker 03:
Yes.

[00:21:41] Speaker 02:
But I read those cases that are cited.

[00:21:44] Speaker 02:
I think Haynesworth, there's a whole bunch of them.

[00:21:49] Speaker 02:
And this is where the DC Court of Appeals cites restatement 323.

[00:21:54] Speaker 02:
But they never say that's the only basis for recovering under whatever this theory is.

[00:22:02] Speaker 02:
In other words, they don't say physical damage, physical harm is the only basis for it.

[00:22:08] Speaker 02:
And I don't know of a case in DC that does say that, do you?

[00:22:12] Speaker 03:
that physical damage is required under section 323?

[00:22:15] Speaker 02:
No, you know of a case that the DC Court of Appeals has decided where it has actually rejected economic harm under this?

[00:22:25] Speaker 03:
No, I don't think so.

[00:22:26] Speaker 03:
I don't think so.

[00:22:28] Speaker 03:
This court, not this court, excuse me, this circuit in the SEIU case, the district court has said just that.

[00:22:34] Speaker 03:
District court.

[00:22:35] Speaker 02:
The district court.

[00:22:35] Speaker 02:
We haven't.

[00:22:36] Speaker 03:
No, you have not.

[00:22:37] Speaker 02:
This is a wonderful opportunity.

[00:22:40] Speaker 02:
So maybe if we get to that, it's the kind of issue that should be certified.

[00:22:44] Speaker 03:
Oh, I don't think so, Your Honor, because there is plenty of indication, as the SEIU case itself pointed out, there's plenty of indication of how DC would rule.

[00:22:57] Speaker 02:
How do we know how it would rule?

[00:22:59] Speaker 02:
You don't know for sure.

[00:22:59] Speaker 02:
This question, we don't.

[00:23:01] Speaker 02:
You don't.

[00:23:02] Speaker 02:
All they've said is they've cited 323.

[00:23:03] Speaker 02:
323 says physical harm.

[00:23:06] Speaker 02:
But we have no case where they've rejected economic harm.

[00:23:10] Speaker 03:
No, but why, but again, Your Honor, if the statute, if not the statute, if the restatement, which has been, if not officially adopted... But it hasn't been officially adopted, that's the whole point.

[00:23:21] Speaker 03:
No, it hasn't been officially adopted, but it has been referred to favorably in numerous decisions.

[00:23:27] Speaker 06:
What does it say on the subject?

[00:23:30] Speaker 06:
What does it say on the subject?

[00:23:32] Speaker 03:
The restatement provision says, in its plain terms, that you must have physical harm, which is how the SCIU case came out.

[00:23:40] Speaker 03:
Why would it be presumed that we're, if you're going to follow the restatement, and certainly there's no reason to believe the D.C.

[00:23:48] Speaker 03:
Court of Appeals wouldn't book us, they have quoted it favorably on a number of occasions.

[00:23:52] Speaker 02:
But that's because they haven't had a case involving economic harm.

[00:23:55] Speaker 03:
No, but that's true, Your Honor, but why would it possibly be assumed that they would go against the plain wording of the statute?

[00:24:01] Speaker 02:
Well, I don't know.

[00:24:02] Speaker 02:
I'm not on the D.C.

[00:24:03] Speaker 02:
court of appeals.

[00:24:04] Speaker 02:
I have no idea.

[00:24:05] Speaker 02:
There are many states, other states, that have extended this to economic law.

[00:24:10] Speaker 02:
And D.C.

[00:24:10] Speaker 02:
just hasn't had a case.

[00:24:12] Speaker 02:
So how would we decide it, other than to guess?

[00:24:17] Speaker 02:
You just say, OK, they've cited 323 in physical harm cases.

[00:24:22] Speaker 02:
Therefore, physical harm is the only basis.

[00:24:24] Speaker 02:
I just don't think that works.

[00:24:26] Speaker 02:
I'm not sure this court has the authority to interpret DC law that way.

[00:24:32] Speaker 03:
Well, I think the court does have the authority to make a reasonable estimation.

[00:24:35] Speaker 06:
Under eerie.

[00:24:36] Speaker 06:
Yes, unless it believes it can't.

[00:24:38] Speaker 06:
Under eerie, we would have the obligation to do that.

[00:24:40] Speaker 06:
As it happens, we're fortunate enough to have a certification statute when we need one.

[00:24:45] Speaker 06:
But having been a judge in a different court where we had states that didn't have those, you have to make your adoption.

[00:24:55] Speaker 03:
guesses or conclusions without being able to find the best estimations where it's possible, where it's possible to do so.

[00:25:05] Speaker 03:
Okay, thank you.

[00:25:07] Speaker 03:
May I just say, our co-appellee, Mr. Lipman, I have to argue for everybody, there are no claims made at all against Mr. Lipman.

[00:25:19] Speaker 03:
His name is just thrown into this thing and he isn't really even briefed by this court, Lipman, PA, so there's no basis to not affirm for our co-appellee.

[00:25:29] Speaker 03:
Thank you.

[00:25:30] Speaker 02:
Mr. Inslee, you were out of time, but you can have one minute if you'd like it.

[00:25:34] Speaker 01:
In regard to the last topic, does your claim in the malpractice count depend in any way on whether

[00:25:45] Speaker 01:
the husband was exposed to asbestos in Maryland?

[00:25:51] Speaker 04:
No, because it's only the wrong-for-death claim.

[00:25:53] Speaker 04:
And Mr. Amado was very clear in his testimony and in his report that it was a breach of the duty of care for Mrs. Brown and Littman not to file in Maryland.

[00:26:07] Speaker 01:
And let me just follow up on that, because Brown and Gould didn't find out

[00:26:15] Speaker 01:
that there was a possibility that the husband was exposed to asbestos in Maryland until October of 2014, correct?

[00:26:26] Speaker 01:
During the deposition of the son.

[00:26:30] Speaker 04:
There was, Mr. Brown knew that Oscar Roker had worked in Maryland in the early 70s during carpentry work, which was a time when he interviewed, that he had worked for Maryland-based employers.

[00:26:44] Speaker 04:
in the early 70s as a carpenter, and that was a period of time in which asbestos was being used routinely in the types of materials that he was working with.

[00:26:53] Speaker 04:
I thought the wife filled out a questionnaire that did not mention... That's right, but in the interview, and I questioned Mr. Brown about this pretty closely,

[00:27:02] Speaker 04:
In his deposition, he acknowledged that in the interview, and it's in his notes that I questioned him about, there are two Maryland-based employers that Mr. Rocco worked for.

[00:27:14] Speaker 01:
But your claim doesn't depend.

[00:27:15] Speaker 04:
No, it doesn't, but from a factual standpoint.

[00:27:19] Speaker 06:
I hate to extend, but I'm going to do it anyway.

[00:27:22] Speaker 06:
What do you see as the elements of this voluntary undertaking claim?

[00:27:29] Speaker 04:
that when one undertakes to perform a

[00:27:34] Speaker 04:
an activity for an individual.

[00:27:36] Speaker 04:
In this case, Mr. Brown undertook to get the law changed in Maryland and D.C., rather, to make his client's claim timely.

[00:27:46] Speaker 04:
He drafted an extensive memorandum.

[00:27:49] Speaker 04:
And the element is the failure to exercise reasonable care in carrying out that activity causing damage.

[00:27:57] Speaker 06:
And what is it that you say is the failure to exercise?

[00:28:01] Speaker 06:
Identify the undertaking and then tell me the figure.

[00:28:04] Speaker 04:
The undertaking was to draft and propose legislation to the DC City Council to amend 12-311 to make Mrs. Rucka's claim timely.

[00:28:16] Speaker 04:
And what he did was draft an extensive memorandum plus propose two different bills.

[00:28:23] Speaker 04:
and it's in the record in which he makes specific reference to Mrs. Roka's case saying that if this law isn't changed, Mrs. Roka's case is going to be dismissed on summary judgment and the failure there

[00:28:36] Speaker 04:
was not to include in his extensive memorandum to city council the idea that if you're going to pass this bill to help Mrs. Roca, please put that the statute must have a retroactive provision.

[00:28:52] Speaker 04:
This court and the Wesley Theological Seminary considered the act that created this statute and whether the use of a retroactive provision was constitutional, and the court held that it was.

[00:29:05] Speaker 06:
So there was a roadmap.

[00:29:08] Speaker 02:
Okay, and what's your response to Council's argument that the

[00:29:16] Speaker 02:
that the voluntary, that the undertaking to get the DC law changed was not part of the retainer, not part of any oral agreement, it was just completely separate and is therefore barred by the statute of limitations.

[00:29:28] Speaker 04:
Well, this is, Mr. Brown is acting as Mrs. Roka's lawyer in this process.

[00:29:34] Speaker 04:
It's part of the representation upper.

[00:29:38] Speaker 04:
To say that

[00:29:39] Speaker 06:
He's had a voluntary undertaking or is it part of the contract of representation?

[00:29:44] Speaker 04:
He had no obligation under the contract that she signed to do what he did.

[00:29:48] Speaker 06:
So it's not part of his contracted representation?

[00:29:52] Speaker 04:
No, but once he undertook

[00:29:56] Speaker 04:
once he voluntarily undertook to uh... do what he did then then uh... toward duty applies in a question of that's important so it would not be affected by the continuing representation because he's doing this

[00:30:11] Speaker 04:
with his hat on as Mrs. Roca's lawyer.

[00:30:13] Speaker 04:
He's acting as her lawyer beyond, perhaps beyond... Aren't those two different stools?

[00:30:18] Speaker 04:
Either he's acting as the lawyer or he is... No, no, I think he's doing two things.

[00:30:23] Speaker 04:
One that's subject to the contract, that he agreed to do in the contract, and then beyond, when he said, I'm going to do more, but I'm acting as your lawyer and doing it, he says that, essentially, in the memo that he sends to city council,

[00:30:39] Speaker 04:
And the whole point of the continuous representation rule is not to put a client in the position of, in the middle of a representation, to sue his lawyer for malpractice.

[00:30:51] Speaker 01:
Was this a contingent fee arrangement?

[00:30:54] Speaker 04:
Yes.

[00:30:55] Speaker 02:
OK, thank you.

[00:30:56] Speaker 02:
Thank you, Your Honor.

[00:30:57] Speaker 02:
The case is submitted.

[00:30:57] Speaker 02:
Thank you for your attention.