Fleming Under Fire

11/17/2008 | Legal Malpractice

One of Augusta's best known criminal defense firms has a problem.  It seems they have been sued--23 times. Their insurance carrier has settled all of them-- but one. The one suit they refuse to settle, or even pay for the defense, was filed by Wendell A. Jenifer.

So, not only is the Fleming firm having to pay the costs of defending themselves in the Jenifer case, they have also sued their insurance carrier, Clarendon National Insurance Co,

Jenifer sued the Fleming firm, John Fleming and his nephew William Fleming in 2006. Mr. Jenifer hired the firm and the attorneys to represent him in a personal injury case against a local hotel, and he alleges his case was thrown out because the attorneys did nothing to pursue it.

Mr. Jenifer's malpractice case was scheduled for trial last month in U.S. District Court. It was put on hold to give the Fleming firm and the attorneys time to get a legal ruling about their insurance coverage during the time Mr. Jenifer claims he was neglected.

According to the Fleming firm's lawsuit, Clarendon provided its malpractice insurance until it canceled the policy in August 2002.

The firm then obtained coverage through Royal Surplus.  Neither insurance company has provided any defense for the firm or attorneys in the Jenifer case.  According to court documents filed in federal court, Clarendon dropped the Fleming firm and attorneys after it had to settle 22 malpractice claims in the fall of 2002. In order to obtain new insurance, John Fleming and William Fleming had to resign from the firm, although John Fleming returned a month later.

In the Jenifer case, the judge has made a very unusual evidentiary ruling.  U.S. District Magistrate Judge W. Leon Barfield framed what a federal court jury will hear as follows "I have come to the conclusion ... that much of the insurance evidence proffered by the plaintiffs in this case is admissible," Judge Barfield said.

Judge Barfield ruled that all of the claims filed within the time period that Mr. Jenifer had dealings with the firm and William Fleming can be used as evidence.

Judge Barfield said it is plausible that the Fleming firm found itself in "a firestorm" in 2002. The insurance company canceled the firm's policy, and it was re-instated only when John and William Fleming resigned. John Fleming returned a month later.

It is plausible, Judge Barfield said, that the firm's attorneys realized that any claim Mr. Jenifer might file would not be covered by the insurance. The evidence about the other insurance claims is relevant because the firm admitted to wrongdoing until it came to Mr. Jenifer's case, the judge said.

In another unusual evidentiary ruling, Judge Barfield ruled the Fleming firm cannot call other attorneys as witnesses to give opinions about the merits of Mr. Jenifer's case against the hotel. That will be a decision the jury must make in determining whether there was legal malpractice, Judge Barfield said.

FYI, this is not the first time the Fleming firm has been under fire.  A couple of years ago, they were accused of "client dumping."

Hans