. Legal ethics

They knew he wasn’t covered. That was the original problem.

Some lighter fare for today but you are stuck with the cringeworthy title.

I have a stack of important potential topics to write about, but the ABA Journal online today reeled me in with their headline on this story (“Litigants claiming GEICO auto policy covers STD from car sex can’t proceed anonymously, judge rules.”) and reading the order in the case only fascinated me further. And it really was not just from a prurient interest perspective, nor just from an “I can’t believe someone was willing to make these kinds of arguments” perspective, but also as a fact pattern that works as a pretty good template for examining multiple ethical obligations of lawyers.

The opening scene, almost unbelievably, of this story is the inside of a 2014 Hyundai Genesis. Two adults, M.B. and M.O. are inside that vehicle and having sex. The sex was unprotected. M.O. later contracts an STD and concludes that M.B. was the source. M.O. contends that she did not know that M.B. had the STD and contends that M.B., who is alleged to be fully aware, certainly never told M.O. that he had the STD.

So, how does this end up in litigation at all, much less litigation that gets a mention in the ABA Journal online? If you guessed an automobile insurance coverage dispute prompting the filing of a declaratory judgment action by the insurance company in federal court, then … well I guess the ABA headline does help a reader ferret out that possibility.

And how did the insurance company find itself in a position where it thought it needed to file a declaratory judgment action? Well, M.O. drafted up a state court lawsuit against M.B. for negligence and negligent infliction of emotional distress, sent the draft to M.B.’s insurance company and demanded settlement with payment by the insurance company of its $1 million policy limits to avoid the suit.

When the insurance company did not agree, the lawsuit was filed and then the parties entered into an agreement under a particular Missouri statute that allows an insured to agree to settle a case but limit the other side’s ability to collect on the settlement only to what they can get from the insurance company.

The insurance company headed over to federal court to file its declaratory judgment action. The parties to the state court action agreed to arbitrate their dispute and the matter resolved with a $5.2 million judgment against M.B. They then proceeded to enroll and seek confirmation of that arbitration award in state court and try to take steps to levy against M.B.’s auto insurance policy.

What was the order that put all of this into the national legal news spotlight? A 23-page order in the federal court proceeding about whether M.B. and M.O. can proceed in the federal court litigation anonymously. Seriously, the Court managed to need 23 pages to work through all of the procedural issues created by the fact that the insurance company — taking its cue from the fact that the parties used pseudonyms in the state court litigation — filed the suit against M.B. and M.O. anonymously. The court ultimately decided that once it rules upon a motion to dismiss focused on personal jurisdiction brought by M.O. (who contends that the sexual intercourse occurred in Missouri and that she shouldn’t be able to be sued by the insurance company in Kansas) any remaining defendants will have to proceed under their real names. And, in so doing, also seemed to engage in bit of unnecessary kink-shaming: “Furthermore, any allegedly private details became less private (although the court questions how private those details actually were if they were having sex in a car) when M.O. sent GEICO a demand letter making an insurance coverage claim.”

Now setting aside the notion that this whole scenario could be used to demonstrate how broken litigation is generally and why it is such an overly expensive proposition, a variety of fun legal ethics questions can be teased out of this matter.

How in the world does a lawyer comply with RPC 3.1 by advancing an argument that the transmission of an STD as a result of sexual intercourse inside an automobile is an injury for which automobile insurance coverage would apply? At first blush, that would seem a real stretch to be able to claim you have a “good faith argument for an extension, modification, or reversal of existing law.” Yet, it is certainly likely to be a question of first impression and so some level of lenience likely exists if there is arguably no existing law addressing the claim or contention at all.

Assuming that the parties did “collude” at least a bit with respect to the arbitration of the matter, at what point, if at all, would it become ethically problematic for a lawyer for either M.B. or M.O. to knowingly go along with such events? Would it matter if those lawyers were limiting their involvement to obtaining the judgment as to M.B. and have not been involved in helping try to collect against the insurance company? And does the existence of the kind of procedural statute that Missouri has muddy that water, I mean what exactly is the purpose of a statute that says an insured can go ahead and agree to settle a case with someone as long as the other side agrees they can only collect from the insurance company other than to encourage at least marginally collusive settlements that become the insurance company’s problem in the end?

And, if the lawyer involved found a way to get comfortable that arguing for coverage under the automobile policy passes muster under RPC 3.1, does the lawyer have to be worried that they didn’t also try to pry money out of M.B. home insurance policy? After all, the federal court decision in talking about the jurisdictional questions and the kinds of issues that could come up in the underlying dispute makes the point that only some of the sexual intercourse occurred in the Hyundai while some of it occurred in M.B.’s house.

Could the lawyer carve out pursuing any other insurance companies as part of a reasonable limitation on the scope of the representation under RPC 1.2(d)?

I’m sure I’ve missed at least one other ethics issue in there somewhere… feel free to be the first to let me know.