A Philadelphia union leader's legal malpractice suit against his former attorney's has been
thrown out by a Philadelphia Court of Common Pleas judge, who rejected the argument that a publicly available affidavit was confidential.
Judge Mark Bernstein granted a motion to dismiss to the defending law firm, Pepper Hamilton, L.L.P., which briefly represented John Dougherty, the business manager for the International Brotherhood of Electrical Workers, Local 98, in 2007 when he was under investigation by the FBI.
The federal government had been investigating Dougherty's relationship with Donald "Gus" Dougherty, a non-relative who had been accused of providing John with favors, such as free renovations to his home. A mix-up attributed to their identical last names caused a 2006 search warrant affidavit for John Dougherty's home to become publicly available in 2008 on PACER, the online federal court database.
In 2009, Dougherty filed a defamation suit against the Philadelphia Inquirer for published articles that said the IBEW leader was under investigation. Pepper Hamilton joined the defense in 2011 and used the affidavit in 2012 to show that Dougherty was, in fact, under investigation. Doughtery contended that those documents were confidential and should not have been made public and that Pepper Hamilton's actions were a breach of contract that harmfully affected his reputation.
Philadelphia Court of Common Plea Judge Lisa Rau dismissed Dougherty's defamation claim against the newspaper and ruled against his motion to strike all mentions of the affidavit.
Pepper Hamilton's motion to dismiss bases its arguments on Rau's opinion, which said, "[The FBI Affidavit] was publicly available for approximately 5 years on Pacer, which provides online public access to federal court filings, and Defendants were free to take it off Pacer and use it in their pleadings. Once the government has released information through a court filing, properly or not, it is a matter of public record fit for use in future court filing."
The defendant's motion to dismiss argues that Rau's ruling has a preclusive effect on the malpractice suit, saying that the common issue of the affidavit's status had already been settled. Rau had decided that the document had not been illegally obtained or disclosed and Dougherty failed to prove that any confidences with his former law firm had been broken.