Shaffer v. Zaid ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY SHAFFER,
Plaintiff,
v. Case No. 20-cv-2492 (CRC)
MARK ZAID, et al.,
Defendants.
MEMORANDUM OPINION
Retired military intelligence officer Anthony Shaffer has sued his former lawyer, Mark
Zaid, and his law firm for malpractice. Shaffer alleges three instances of derelict representation
over an intermittent twelve-year professional relationship with Zaid. Finding two of the
allegations time-barred and the third insufficient to state a claim, the Court will grant Zaid’s
motion to dismiss the case.
I. Background
A. Factual Background
The Court draws the following background from Shaffer’s complaint and materials it
references. Although Zaid has filed a lengthy factual declaration in support of his motion to
dismiss, see Decl. of Mark Zaid, ECF No. 7-1, and both parties raise facts outside the complaint
in their briefing, the Court must limit itself to the pleadings when deciding a motion to dismiss.
See, e.g., Thomas v. Pompeo, 438 F. Supp. 3d 35, 40 (D.D.C. 2020). Otherwise, as Mr. Zaid and
his counsel surely appreciate, the Court would have to convert his motion to dismiss under Rule
12(b)(6) to one for summary judgment under Rule 56 and provide Shaffer an opportunity to
contest through discovery any disputed material facts offered by Zaid in his declaration. The
Court also must take the facts alleged in the complaint as true at this early stage of litigation and
make all reasonable inferences from those allegations in favor of the plaintiff. See, e.g., Sissel v.
U.S. Dep’t of Health & Hum. Servs., 760 F.3d 1, 4 (D.C. Cir. 2014).
1. The “Able Danger” Program
Anthony Shaffer is a retired Lieutenant Colonel previously employed by the U.S. Army
and the Defense Intelligence Agency (“DIA”). Compl. ¶¶ 2, 10, 16. During his time at the DIA,
Shaffer participated in Able Danger, a once-classified government program created in 1999 to
counter the rise of Al-Qaeda. Id. ¶ 18, 19. The program’s primary purpose was to identify
operational vulnerabilities within the terrorist group, and Shaffer was tasked with covertly
accessing the group’s computer systems. Id. ¶¶ 17, 20. According to Shaffer, Able Danger
uncovered two of the Al-Qaeda cells that ultimately carried out the September 11, 2001, attacks
on the World Trade Center and Pentagon. Id. ¶ 21. Shaffer claims that he alerted his DIA
superiors to this information in September 2000, but that they never shared the information with
the FBI and prematurely shuttered the program prior to the attacks. Id. ¶ 18, 22.
In 2004, Shaffer revealed the existence of Able Danger to the 9/11 Commission, opining
that the government’s termination of the program squandered an opportunity to prevent the
September 11th attacks. Id. ¶ 2. Shaffer alleges that the government responded by “launch[ing]
a retaliatory campaign to revoke [his] security clearance and terminate him from government
service.” Id. ¶ 3. The DIA suspended Shaffer’s security clearance in March 2004 and it was
permanently revoked two years later. Id. ¶ 26.
2
2. Shaffer’s Initial Retention of Zaid
Sometime in 2005, Shaffer retained Mark Zaid to represent him in connection with
congressional testimony about Able Danger. Id. ¶ 27. 1 Shaffer’s complaint provides no further
information about that representation, aside from a general allegation that Zaid “assisted him
throughout the process” and that “it was during this time [Shaffer] lost his clearance and was
wrongfully terminated by the DIA.” Id. ¶ 42. Additionally, Shaffer alleges that he informed
Zaid that “he wanted to sue for damages and file a complaint for the loss of his clearance and
wrongful termination.” Id. ¶ 43. “While [Zaid] did assist [Shaffer] with his security clearance
revocation,” he purportedly “failed to file a complaint with the Office of Special Counsel (OSC)
regarding the retaliation Plaintiff faced from the DIA.” Id. According to Shaffer, Zaid informed
him that filing a complaint with OSC “would be a conflict of interest[.]” Id. 2
3. First Amendment Litigation over Shaffer’s Memoir
In 2007, Shaffer penned a memoir titled Operation Dark Heart: Spycraft and Special Ops
on the Frontlines of Afghanistan. Id. ¶ 29. As required under a non-disclosure agreement that he
entered into with the Army, Shaffer submitted the memoir for prepublication review. Id. ¶ 30.
1
Shaffer’s filings provide sparse and conflicting information about the representation
stemming from his congressional testimony. To take one example, Shaffer alleges that he
testified before Congress regarding Able Danger in 2015. See Compl. ¶ 41. The Court takes
“2015” to be a scrivener’s error, given that the claimed instances of retaliation—the suspension
and revocation of Shaffer’s security clearance—occurred in 2004 and 2006. In any event, it is a
matter of public record—of which the Court may take judicial notice—that Zaid testified before
the Senate Judiciary Committee on Shaffer’s behalf in September 2005. Shaffer v. Def. Intel.
Agency, 601 F. Supp. 2d 16, 21 (D.D.C. 2009); see also Shaffer v. Def. Intel. Agency, 102 F.
Supp. 3d 1, 7 & n.4 (D.D.C. 2015).
2
Although not described in the complaint, Zaid also represented Shaffer in proceedings
before retired Judge Gladys Kessler of this court, in which Shaffer sought an injunction
compelling the government to permit him to discuss classified material with his counsel in
connection with his congressional testimony. That lawsuit was filed in 2006 and voluntarily
dismissed in 2009. See Shaffer v. Pierce, No. 06-cv-271 (D.D.C. dismissed July 10, 2009).
3
According to Shaffer, the manuscript received a “favorable” review from the Army until the DIA
and Central Intelligence Agency obtained a copy of it and determined that it contained classified
information. Id. ¶ 31. In August 2010, the Army revoked publication approval for the book
based on objections lodged by the DIA and CIA. Id. ¶ 32. Shaffer responded by agreeing to
modify any objectionable passages and redact any text that could not be modified to the parties’
satisfaction. Id. This agreement led to the redaction of over three-quarters of the book’s pages.
Id.
In December 2010, Zaid filed a complaint on Shaffer’s behalf in this court, alleging that
the DIA violated the First Amendment by depriving him of the right to publish his book without
certain redactions. Id. ¶ 33. The Court will refer to this case as the “First Amendment
litigation.” After five years of litigation, now-retired Judge Rosemary M. Collyer granted
Shaffer summary judgment on the issue of whether he could publish information from his 2006
testimony before the House Armed Services Committee. Id. ¶ 35; see also Shaffer v. Def. Intel.
Agency, 102 F. Supp. 3d 1, 15 (D.D.C. 2015). Having found in his favor, Judge Collyer invited
Shaffer to “proceed on a claim for attorney fees under the Equal Access to Justice Act (EAJA),
28 U.S.C. § [2]412.” Compl. ¶ 36 (quoting Shaffer, 102 F. Supp. 3d at 12 n.11).
A party seeking fees under the EAJA must submit an application for fees to the court
within 30 days of the final judgment. See 28 U.S.C. § 2412(d)(1)(B). Shaffer does not allege
that he received an extension of this deadline, and the Court’s review of the case docket reveals
none. See generally Docket, Shaffer v. Def. Intel. Agency, et al., No. 10-cv-2119 (D.D.C.
dismissed November 13, 2015). Zaid never filed an application for attorney’s fees. Id. ¶¶ 37–
39.
4
4. The John Crane Disclosure
The complaint references no interactions between Shaffer and Zaid following the
conclusion of the First Amendment litigation until the fall of 2017. Earlier that year, a former
Assistant Inspector General for the Department of Defense, John Crane, had submitted a
“Disclosure of Urgent Concern” to DoD’s Inspector General’s office. Compl. ¶ 46. Mr. Crane
alleged in that disclosure that DIA mishandled the Able Danger program and retaliated against
Shaffer “for making disclosures in the course of his official duties[.]” Id. ¶¶ 46–47.
On September 6, 2017, Shaffer contacted Zaid about pursuing a retaliation claim against
the DIA in light of the Crane disclosure. Id. ¶ 57. 3 According to Shaffer, Zaid had “represented
[him] in [sic] an ongoing and continuous basis” at that time. Id. Nonetheless, Zaid
“immediately responded” to Shaffer’s inquiry by informing him that “he would no longer be able
to represent [him] as it was a conflict of interest.” Id. ¶ 58. Shaffer says that Zaid provided no
explanation of the conflict of interest. Id. ¶ 59. Based “[o]n information and belief,” however,
Shaffer surmises that “a conflict may have existed long before the Crane affidavit came to light.”
Id. ¶ 59. The only basis Shaffer offers for this belief is that Zaid “represents several corrupt
government officials.” Id.
B. Procedural Background
Shaffer filed the present complaint against Zaid on September 6, 2020, exactly three
years after Zaid declined to represent him in connection with a retaliation claim against the
3
In their briefs, the parties also discuss a meeting that both men attended following the
Crane disclosure and subsequent email exchanges between the two in the summer of 2017.
Compare Mot. to Dismiss at 6, 12, 13 with Opp. at 11, 13. Their accounts of these events differ,
but the Court does not wade into this dispute, as there is no mention of any such meetings or
correspondence in Shaffer’s complaint.
5
DIA. 4 The Complaint seeks over $1 million in compensatory and punitive damages. See
Compl. ¶¶ 70–71. In Count One, Shaffer alleges that Zaid committed legal malpractice by (1)
failing to seek damages or apply for attorney’s fees in the First Amendment case, which lasted
from 2010 to 2015; (2) failing to pursue a claim against the DIA for “[w]histleblower
[r]etaliation” following the revocation of his security clearance in 2006 and his subsequent
termination; and (3) failing to disclose the existence of a conflict of interest until 2017. See id.
¶¶ 63–71. 5 In Count Two, Shaffer alleges that the same conduct constituted a breach of fiduciary
duty. Id. ¶¶ 72–77.
Zaid has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).
He argues that Shaffer’s legal malpractice claims are barred by the applicable three-year statute
of limitations, Mot. to Dismiss at 10–14, and that the breach of fiduciary duty claims must
likewise be dismissed because they are duplicative of the malpractice claims, id. at 18–19.
Shaffer rejoins that the so-called “continuous representation rule” should toll the running of the
statute of limitations until September 6, 2017, when he says Zaid officially terminated their
attorney-client relationship. Opp. at 7–8.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a complaint that fails “to
state a claim upon which relief can be granted.” In analyzing a Rule 12(b)(6) motion, the court
must determine whether the complaint “contain[s] sufficient factual matter, accepted as true, to
4
Shaffer’s complaint names both Mark S. Zaid and the law firm Mark S. Zaid, P.C., as
defendants in this action. For ease of reference, the Court will refer to them both as Zaid.
5
Again, Shaffer neglects to pinpoint when any of these alleged instances of malpractice
occurred. The Court has deduced these timeframes by taking judicial notice of the proceedings
involving Shaffer before Judge Collyer (No. 10-cv-2119) and Judge Kessler (No. 06-cv-271) and
by piecing together the few dates provided elsewhere in the complaint.
6
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must “accept as true
all of the complaint’s factual allegations and draw all reasonable inferences in favor of the
plaintiffs,” but need not “accept inferences unsupported by facts or legal conclusions cast in the
form of factual allegations.” Owens v. BNP Paribas, S.A., 897 F.3d 266, 272 (D.C. Cir. 2018).
In addition to the allegations within the four corners of the complaint, the court may consider
“documents attached thereto or incorporated therein, and matters of which it may take judicial
notice.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006).
III. Analysis
The Court first considers Shaffer’s legal malpractice claim before turning to his claim for
breach of fiduciary duty.
A. Legal Malpractice Claim
In the District of Columbia, the statute of limitations governing a legal malpractice claim
is three years. Wagner v. Sellinger, 847 A.2d 1151, 1154 (D.C. 2004); see D.C. Code § 12–
301(8). A claim for legal malpractice accrues when “a plaintiff knows, or by the exercise of
reasonable diligence should know, of (1) an injury, (2) its cause, and (3) some evidence of
wrongdoing.” Wagner, 847 A.2d at 1154. The limitations period is tolled in some instances,
however, when the attorney continues to represent the client following the alleged malpractice.
Under the continuous-representation rule, a “malpractice cause of action does not accrue until the
attorney’s representation concerning the particular matter in issue is terminated.” R.D.H
Commc’ns, Ltd. v. Winston, 700 A.2d 766, 768 (D.C. 1997) (emphasis added); see also Seed Co.
Ltd. v. Westerman, 832 F.3d 325, 332 (D.C. Cir. 2016) (statute of limitations for a legal
malpractice claim is tolled “during the time the attorney continues to represent the client in the
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relevant matter”). The purpose of the rule is to prevent clients from “having to choose between
(i) disrupting an ongoing lawyer-client relationship to enable bringing a malpractice claim and
(ii) continuing the relationship but relinquishing the claim.” Seed Co., 832 F.3d at 332 (citing
Bradley v. Nat’l Ass’n of Sec. Dealers Disp. Resol., 433 F.3d 846, 850 (D.C. Cir. 2005)).
Shaffer alleges Zaid committed legal malpractice in three respects during what he
describes as an “ongoing and continuous” period of legal representation spanning some twelve
years. First, he contends that Zaid failed to seek attorney’s fees upon the successful conclusion
of the First Amendment litigation in 2015. Compl. ¶ 66a. Second, he maintains that Zaid failed
to pursue a retaliation claim against the DIA following the revocation of his security clearance in
2006 and his subsequent termination. Id. ¶ 66b. Finally, he alleges based “on information and
belief” that Zaid concealed a conflict of interest that “prevented him from pursuing” the
retaliation claim against the DIA. Id. ¶ 66c. (The existence of a conflict was not apparent to
him, Shaffer says, until September 6, 2017, when Zaid cited an unspecified conflict as the reason
for discontinuing the representation following John Crane’s disclosures to the DoD Inspector
General’s office. Id.)
As noted, Shaffer filed this suit on September 6, 2020, and the applicable statute of
limitations is three years. Absent application of the continuous-representation rule, any claim
based on alleged malpractice accruing before September 6, 2017 would be time barred. The only
one of Shaffer’s three malpractice allegations that falls within three years of the complaint is the
claim that Zaid concealed a conflict, which Shaffer says he did not discover until exactly three
years before filing suit. Accordingly, resolution of Zaid’s motion to dismiss requires the Court
to determine (a) whether the continuous-representation rule tolled the accrual of the two earlier
malpractice claims—i.e., failing to seek attorney’s fees in the First Amendment case and failing
8
to file a retaliation claim against the DIA following the revocation of his security clearance and
termination—and (b) whether Shaffer has stated a claim based on Zaid’s purported concealment
of a conflict of interest, which does fall within the limitations period.
1. Failure to Seek Attorney’s Fees in First Amendment Case
The Court begins with Zaid’s failure to seek attorney’s fees following the First
Amendment litigation. To recap, Judge Collyer entered partial summary judgment in Shaffer’s
favor on March 26, 2015. See Shaffer v. Def. Intel. Agency, 102 F. Supp. 3d 1 (D.D.C. 2015).
In her ruling, she invited Shaffer to apply for attorney’s fees under the EAJA. Id. at 12 n.11.
The EAJA gives prevailing parties 30 days from judgment to apply for fees. See 28 U.S.C.
§2412(d)(1)(B). The case docket, which is subject to judicial notice, indicates no extension of
that deadline and a final dismissal of the case. See Docket, Shaffer v. Def. Intel. Agency, No.
10-cv-2119 (D.D.C. Apr. 21, 2015). Shaffer’s subsequent appeal was dismissed by the D.C.
Circuit on November 10, 2015. See Shaffer v. Def. Intel. Agency, No. 15-5180, 2015 WL
9008153, at *1 (D.C. Cir. Nov. 10, 2015). Thus, litigation of the First Amendment case ended
no later than November 2015. The question, then, is whether Shaffer has alleged any facts to
suggest that Zaid’s representation of him “in th[at] specific matter” continued after November
2015. 6 Winston, 700 A.2d at 768 (emphasis added); see also Bradley, 433 F.3d at 850 (“[T]he
malpractice cause of action does not accrue until the attorney’s representation concerning the
particular matter in issue is terminated.”) (emphasis added). He has not.
6
Zaid attests that he “did some minimal follow-up work in connection with [the First
Amendment litigation] through early summer 2016,” but did no further work after July 2016 at
the latest. Mot. to Dismiss at 5; see also id., Ex. 1 at 12. The Court cannot consider anything
outside Shaffer’s factual allegations at this stage, without converting the motion to one for
summary judgment. But even if the Court were to assume Zaid’s representation on the First
Amendment litigation continued until July 2016, this would not change the outcome, as there is
no indication that Zaid worked on that matter in the three years prior to the filing of this suit.
9
The only post-2015 interaction between Shaffer and Zaid described in the complaint
concerns Shaffer’s request, nearly two years later, that Zaid pursue a retaliation case against the
DIA in light of the Crane disclosures. Here is the full description:
On September 6, 2017, Plaintiff contacted Defendant, who had represented
Plaintiff in an ongoing and continuous basis, regarding the Affidavit and
disclosure by Crane to discuss options of pursuing a retaliation claim. Defendant
immediately responded he would no longer be able to represent Plaintiff as it was
a conflict of interest. At no point did Defendant explain the conflict of interest.
Compl. ¶¶ 57–58. These allegations are insufficient to trigger the continuous-representation rule.
For one, the statement “[Zaid] had represented Plaintiff in [sic] an ongoing and continuous basis”
is entirely conclusory. Id. ¶ 57. It is no substitute for concrete factual allegations suggesting the
existence of an ongoing attorney-client relationship as late as 2017. Cf. Hiligh v. Sands, 389 F.
Supp. 3d 69, 75–76 (D.D.C. 2019) (Cooper, J.) (specific allegations of ongoing attorney work
arising from the same incident supported application of the continuous-representation doctrine at
the motion-to-dismiss stage). Sticking just to the facts alleged in the complaint, they do not
allow an inference that Zaid and Shaffer were in an attorney-client relationship in September
2017. If anything, they suggest the opposite: that Shaffer approached Zaid about filing a new
lawsuit but Zaid declined the representation due to a conflict.
Moreover, even if the complaint could be read to infer the existence of an attorney-client
relationship in 2017, the parties’ discussion of a potential retaliation suit is not sufficiently
intertwined with the First Amendment litigation to toll the statute of limitations. Defining the
“particular matter at issue,” Bradley, 433 F.3d at 850, for purposes of the continuous-
representation rule can be difficult in some cases, Hiligh, 389 F. Supp. 3d at 74 (“[T]he precise
contours of the continuous-representation rule are sometimes murky, and it is not always easy to
discern exactly what constitutes a ‘particular matter’ in which a lawyer’s representation was
10
continuous.”). But it is clear here that a potential retaliation claim against the DIA over Shaffer’s
termination based on the Crane disclosure is distinct from the First Amendment litigation
challenging the government’s prepublication redaction of Shaffer’s memoir. While both matters
generally relate to Shaffer’s government employment, any potential retaliation claim would
involve different subject matter, would be based on different precipitating events occurring at
different times, would take place in different fora, would raise different legal claims, and would
seek different remedies. The continuous-representation rule therefore does not apply. Cf.
Hiligh, 389 F. Supp. 3d at 75 (applying continuous-representation rule where separate lawsuits
stemmed from same tort injury).
2. Failing to File a Claim Following the Revocation of Shaffer’s Security
Clearance
Nor does the continuous-representation rule save Shaffer’s claim that Zaid committed
malpractice by not filing an administrative retaliation claim against the DIA after it revoked his
security clearance. The precise timing of this claim is unclear from the complaint. Shaffer
alleges that he first retained Zaid in 2005 in connection with congressional testimony regarding
Able Danger, and that his security clearance was revoked in 2006. Compl. ¶¶ 25–26, 41–42.
According to Shaffer, “[i]t was during this time” that he “was wrongfully terminated by DIA.”
Id. ¶ 42. Assuming arguendo that these two areas of representation involve one “matter at
issue,” any claim for malpractice based on these events accrued (at the latest) in 2006. It was not
until eleven years later, in 2017, that Shaffer contacted Zaid about filing a claim based on the
Crane disclosures.
True to its name, the continuous-representation rule “tolls the statute of limitations for a
legal malpractice claim during the time the attorney continues to represent the client in the
relevant matter.” Seed Co., 832 F.3d at 332 (emphasis added). Even assuming the parties’ 2017
11
discussion related to Shaffer’s congressional testimony and security clearance revocation, the
complaint alleges no facts to suggest that Zaid continued to represent Shaffer with respect to
those matters in the intervening eleven years. 7 See Gallucci v. Schaffer, 507 F. Supp. 2d 85, 91
(D.D.C. 2007) (declining to apply the rule where plaintiff offered no evidence of contacts with
his lawyer about the relevant matter between the alleged malpractice and a phone call 28 years
later). Zaid’s representation of Shaffer in the First Amendment case does not help Shaffer
because, as discussed above, those were different matters. Nor does Shaffer’s wholly conclusory
allegation of an “ongoing and continuous” attorney-client relationship suffice to trigger the rule.
As a result, the continuous-representation rule does not toll the three-year limitations period on
this claim.
This result fits with the purpose of the rule, which is to free clients from the Sophie’s
Choice of accepting malpractice or jeopardizing their case by suing their lawyer midstream. See
Rocha v. Brown & Gould, LLP, 101 F. Supp. 3d 52, 74 (D.D.C. 2015) (“[C]ourts in this Circuit
consistently look to the continuous representation rule’s purpose—which is to avoid placing a
client in the untenable position of suing his attorney while the latter continues to represent him.”
(internal quotation marks omitted)). The dilemma is avoided so long as the matter continues.
But once the relevant matter ends, the limitations clock starts to tick. And maintaining a general
7
Shaffer does not indicate in his complaint when he was terminated from DIA. His
opposition asserts that he was not terminated until 2009. Opp. at 3. Both Shaffer’s complaint
and Zaid’s filings, however, indicate that Shaffer was fired sometime earlier. Compl. ¶ 42
(alleging that Shaffer “was wrongfully terminated by the DIA” while he “was acting as a
[w]histleblower and testifying before Congress”); id. ¶¶ 26, 35, 40 (alleging that Shaffer’s
security clearance was revoked in 2006 and that he testified before Congress in February 2006);
see also Mot. to Dismiss at 3 (asserting that Shaffer was fired in the fall of 2006). The
distinction is without a difference when applying the continuous-representation rule. If Shaffer’s
termination claim accrued in 2009 rather than 2006, then there was an eight- rather than eleven-
year lapse in representation about any retaliation claim.
12
relationship with the lawyer or hiring him for separate matters doesn’t stop the ticking. See, e.g.,
Encyclopaedia Britannica, Inc. v. Dickstein Shapiro, LLP, No. 10–0454 (JDB), 2012 WL
8466139 at *13–16 (D.D.C. Feb. 2, 2012) (patent prosecution and subsequent patent
infringement litigation constituted separate matters at issue for purposes of continuous-
representation rule); Rocha, 101 F. Supp. 3d at 72 (trial court litigation and subsequent appeal
constituted separate matters at issue for purposes of the continuous-representation rule).
Shaffer’s complaint alleges no interactions with Zaid related to his Able Danger
revelations in the eleven years between the agency’s revocation of his security clearance in 2006
and his conversation with Zaid about the Crane disclosures in September 2017. He therefore had
ample opportunity to claim malpractice within the three years following the clearance revocation
without imperiling Zaid’s work on that matter. The continuous-representation rule does not
excuse him from filing his malpractice claim within the three-year limitations period. 8
Accordingly, this claim is time-barred.
3. Alleged Concealment of a Conflict of Interest
Finally, Shaffer alleges that Zaid committed malpractice by concealing a conflict of
interest that prevented him from pursuing a retaliation claim against the DIA. Compl. ¶ 66c.
Shaffer claims that he was unaware of the existence of the conflict until Zaid “finally” revealed it
in their September 2017 conversation when explaining why he could not represent Shaffer
following the Crane disclosure. Id. This allegation also fails. Shaffer’s sole support for the
8
The same would be true even if Zaid’s representation in the First Amendment litigation
were deemed related to his representation in the security clearance revocation matter. As
discussed above, the First Amendment case ended in 2015 and the only subsequent interaction
between the parties alleged in the complaint concerns Zaid’s declination of representation in
2017. Compl. ¶¶ 57–59. Therefore, Shaffer has not alleged facts demonstrating a “continuous”
representation after 2015.
13
claimed concealment of the conflict is “information and belief” grounded on an assertion that
Zaid “represents several corrupt government officials.” Id. ¶ 59. Though a plaintiff may base
allegations on “information and belief” in certain circumstances where “the necessary
information lies within defendants’ control,” those allegations must “be accompanied by a
statement of facts” that renders the allegation plausible. Kareem v. Haspel, 986 F.3d 859, 866
(D.C. Cir. 2021). Shaffer offers no such facts here. He does not suggest how Zaid’s purported
representation of unnamed “corrupt government officials” prevented Zaid from representing him
over a decade earlier in the security clearance matter. Nor does he explain how these other client
matters support a plausible inference that Zaid concealed the existence of a conflict until 2017.
What’s more, Shaffer’s allegations elsewhere in the complaint contradict his assertion
that Zaid concealed the existence of a conflict until their September 2017 conversation.
Specifically, Shaffer alleges that Zaid informed him during the 2006 security clearance
revocation matter that he could not file a retaliation complaint because “it would be a conflict of
interest.” Compl. ¶ 43. Shaffer thus acknowledges that he was on contemporaneous notice that
Zaid may have suffered from a conflict, yet he stood pat for over decade.
Similarly unpersuasive is Shaffer’s passing argument that the limitations period should be
tolled due to Zaid’s “fraudulent concealment” of the purported conflict. See Opp. at 13-14. This
is not a case where a lawyer’s concealment of information deprived the client of knowledge of a
potential malpractice claim. Shaffer contends that Ziad failed to pursue a retaliation claim
against the DIA following the revocation of his clearance and failed to seek attorney’s fees
following the First Amendment litigation “despite [Shaffer’s] explicit written requests.” Compl.
¶ 66 (emphasis added). In his own telling, then, Shaffer not only was aware of Zaid’s alleged
failings, he was actively disputing them at the time they occurred. There is no basis for tolling
14
the limitations period under these circumstances. See Diamond v. Davis, 680 A.2d 364, 377
(D.C. 1996) (tolling due to fraudulent concealment unavailable where plaintiff was on notice of
potential claim).
B. Breach of Fiduciary Duty
In Count Two, Shaffer alleges a breach of fiduciary duty. As a matter of judicial
economy, courts dismiss claims for breach of fiduciary duty that merely restate malpractice
claims. Hinton v. Rudasill, 384 F. App’x 2, 3 (D.C. Cir. 2010); Biomet Inc. v. Finnegan
Henderson LLP, 967 A.2d 662, 670 n.4 (D.C. 2009). Shaffer’s breach of fiduciary duty claim
and his malpractice claim are based on the same set of facts and seek identical relief. See
Compl. ¶¶ 66, 72–75. The Court will therefore dismiss the breach of fiduciary duty as
duplicative of the malpractice claims.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion to dismiss. A
separate Order will follow.
CHRISTOPHER R. COOPER
United States District Judge
Date: September 27, 2021
15