- An attorney received judicial sanctions stemming from the misrepresentation of his COVID-19 vaccination status.
- The attorney appeared before a federal court on at least four occasions during the pandemic.
- Ultimately, the court sided with the insured attorney.
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 affairs of his client, the federal government. ABA Litigation Section leaders believe that this case underscores the discretion afforded courts when interpreting insurance policy language and they warn litigators that similar circumstances could result in different outcomes.
Three Lies and One Truth
In Cooperstein v. Scottsdale Ins. Co., the U.S. District Court for the Southern District of Mississippi was asked to determine whether the insuring language in a professional liability policy entitled a U.S. assistant attorney to a defense against judicial sanctions proceedings 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 occasions during the COVID-19 pandemic. On three of those occasions, he misrepresented his vaccination status by indicating to the court that he was vaccinated. Only on the fourth appearance did he admit that he was not vaccinated and that he had applied for an exemption from vaccination. Several weeks after his admission, the district court issued a show cause order directing the attorney to explain why he should not be sanctioned. In addition, the U.S. Department of Justice’s Office of Professional Responsibility (DOJ) opened an investigation into the attorney’s inconsistent responses in court.
The attorney submitted a claim to his insurer, seeking defense against both his judicial sanctions proceedings 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 affairs or services of the federal government as required to trigger a defense under the policy.
The attorney sued his insurer seeking, among other claims, a declaratory judgment holding that the policy covered the cost of defense related to the show cause proceedings and the DOJ investigation. Both parties moved for summary judgment.
Furthering the Affairs and Services of the Federal Government
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 language. 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 affairs or services of the federal government.
The court noted that the attorney’s misrepresentations were made while he was in federal court to represent and prosecute cases on behalf of the federal government. Further, his misrepresentations were made on the record and in response to the judge’s questions. The insurer argued that its denial of coverage was appropriate because the misrepresentations concerned the attorney’s vaccination status and were therefore unrelated to the federal government’s affairs or services. The court was not persuaded.
Alternatively, the insurer argued that denial of coverage was appropriate pursuant to the policy’s Intentional Acts Exclusion. Rejecting this argument, the court reasoned that the exclusion applied only to criminal and disciplinary proceedings and not to judicial sanctions which constituted a separate category from criminal and disciplinary proceedings.
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 employment and while he was engaged in and furthering the affairs or services of the United States.”
“Could Have Gone Either Way”
“This was a very nuanced disagreement about the meaning of a single phrase in the policy,” admits John C. Bonnie, Atlanta, GA, cochair of the Litigation Section’s Insurance Coverage Litigation Committee. Section Leaders 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. “The prosecutor had two ways to win—proving that coverage unambiguously applied, or alternatively, showing that the policy language was unclear, in which case he would have gotten coverage by default. In this case, the judge found the former to be true,” he clarifies.
“This case may signal an expansion of what falls within the definition of “furthering the affairs or services” of one’s employer,” suggests Tiffany Rowe, Washington, DC, cochair of the Section’s Professional Liability Litigation Committee. Additionally, she sees this case as an admonition to lawyers 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 prosecution or defense of your case,” she concludes.
- Christopher G. Binns, “COVID-19 Fears May Be Grounds for Withdrawal,” Litigation News (Mar. 9, 2021).
- Leland Jones and Thomas Boley, “Is the Exclusion Identified on the Declarations Pages?,” Ins. Coverage (Mar. 8, 2023).
- Mark E. Cohen, Rina Carmel, and Suzanne Whitehead, “Evaluating Whether the Insured Was Performing “Professional Services”,” Ins. Coverage (Jan. 22, 2014).