Partner's Devotion to Client Leads to
Malpractice Suit Against Him, His Firm

By Jeff Jeffrey
The National Law Journal
New York Lawyer
September 8, 2009

Hogan & Hartson partner Robert Cave was warned not to get involved.

The bitter dispute between a wealthy investment banker and his ex-wife had already chewed through several Washington lawyers by the time it came to him in 1997. Williams & Connolly litigator Brendan Sullivan Jr. called it a real mess, according to court documents. Cave's colleague, J. Warren Gorrell Jr., who currently chairs Hogan, did not want the case to come into the firm.

As a member of Hogan's executive committee, Cave overruled fellow committee member Gorrell and agreed to help Colleen Boland negotiate a settlement agreement with her ex-husband. Boland and Frank Benevento II divorced a year earlier, but the two continued to fight over alimony, child support and other issues. "My firm didn't want this case," Cave said to a Washington judge last year, according to court documents. "I was on the management committee and shoved it down their throats."

Cave, who handled some messy personal and personnel matters for the late Washington Redskins owner Jack Kent Cooke, thought it would be a quick favor — he'd handle the case until it could be passed to another lawyer. He even told Boland she probably wouldn't have to pay him. But the litigation has consumed Cave for nearly 12 years, driving his practice into the ground and leading him to withdraw from Hogan's partnership. Even his client's death in 2006 didn't end his involvement. Cave was appointed personal representative of Boland's estate and caretaker of the family's trust with what he claims was a directive to ensure that Benevento pay up more than $680,000 in court-ordered judgments.

Now, Boland's sons are suing Cave and Hogan & Hartson in two courts for breach of contract and malpractice, alleging the firm pursued unnecessary legal action against their father that drove up fees and drained their inheritance. The latest action by the sons and Boland's estate — filed in District of Columbia Superior Court last month — seeks $120 million in damages. That complaint describes Cave as a lawyer who grew too close to his client and her children. The suit claims Cave developed a "romantic crush" on Boland, noting that he had referred to her as the best friend he's ever had.

"Our information strongly suggests that the activities of Mr. Cave and Hogan & Hartson have damaged both the estate and the trust a significant amount," said Dale Cooter, a name partner at Washington's Cooter, Mangold, Tompert & Karas, who represents the estate and the trust. "This lawsuit is designed to recover both the monies wrongfully paid to Hogan & Hartson and the lost profit on those monies."

Hogan's general counsel, George Mayo, declined to speak in detail about the matter but said, "from our perspective this has been one of those cases that has gone on and on and on. And there's no merit to it." Court documents show that, as of February 2008, Hogan had billed the estate more than $1.2 million in legal fees and other expenses. Of that, the firm had collected $465,000.

Cave, 56, declined to comment. But in court documents, hearing transcripts and in an October 2008 deposition, he explains how Boland became his best friend, how he risked his entire legal career to help her and how, even after her death, he continued to fight for her family. He has steadfastly argued he was doing exactly what Boland hired him to do. "I have loaned this case a million dollars out of my time," Cave said at a court hearing last year. "You have no idea the toll it's taken on me."

Frank Benevento II is an investment banker who made headlines in 1994 when a federal jury granted him $14.2 million for his role as an adviser during the 1989 bidding war for RJR Nabisco won by Kohlberg, Kravis, Roberts & Co. In Barbarians at the Gate, the best-selling book about the buyout, Benevento is described as a "mad scientist" when it comes to finding solutions to financial problems. Benevento declined to comment.

Boland was a wealthy woman in her own right. She was one of eight children whose father, Louis Boland Sr., made a fortune by founding Rockville, Md.-based Boland Trane Associates and Boland Trane Services, which sell and service commercial air conditioning units. When her father died in 2003, he left Colleen Boland part ownership of one of the companies and an annual income of $550,000, according to a transcript from a court hearing.

The couple separated in 1992 after eight years of marriage. Both hired top Washington lawyers to handle the divorce. Benevento used Armin Kuder of Kuder, Smollar & Friedman and Graeme Bush and Frank Carter, now partners at Zuckerman Spaeder. Boland used her brother Sean Boland, who currently co-chairs Howrey's antitrust group, and Carol Joffe, then with Winston & Strawn.

In an affidavit filed in the divorce case, Sean Boland testified that Benevento called him in 1995 and vowed to bankrupt the entire Boland family with litigation expenses if they tried to come after his money. "[He] said that he would see to it that Colleen had no money to litigate against him and would spend any amount of money and employ any number of lawyers necessary to prevent his wife from obtaining any significant assets," Sean Boland testified.

The divorce was finalized in 1996, but Benevento and Boland continued to fight over child support and other issues relating to their two sons.

Cave, in court papers, said a childhood friend asked him to take up Boland's case. He said he turned it down three times because he didn't want to handle another domestic case.

A Vietnam veteran, Cave joined Hogan in 1978 and made partner seven years later. Cave practices complex commercial litigation, employment litigation and tort claims. "I'm the one lawyer here who does a lot of personal injury," Cave said in an October 2008 deposition. "I do contingency cases."

His clients have included the Washington Metropolitan Area Transit Authority, the Metropolitan Washington Airport Authority, MetLife Inc. and The Mutual of Omaha Cos., according to his bio posted on the firm's Web site. For 12 years, Cave served as outside counsel to the Washington Redskins and, in 1993, Legal Times reported that Cave referred to himself as "a family attorney" to the Cookes. Cave represented Jack Kent Cooke in the annulment he received from his fourth wife, Marlene Ramallo Chalmers, in 1994. (Cooke and Chalmers were remarried in 1995.)

Cave eventually agreed to meet with Boland. In court documents, Cave said Boland told him that her ex-husband was routinely filing motions in D.C. Superior Court alleging that she was violating the divorce settlement on matters such as clothing the children wore while visiting their father.

"When I saw the file, that was exactly true," Cave said at a deposition. "And she was terrified."

Boland also described her trouble with finding and keeping lawyers. "Her concern is that her husband brought a multitude of attorneys against her...he had won almost everything," Cave said in a deposition. "That every attorney she had gone to had been scared off one way or the other, that he typically would file a motion to disqualify....No one particularly wanted to tangle with her — with her husband."

When Cave talked to his firm about taking on the Boland case, some partners, including now managing partner Gorrell, objected. But Cave, who had recently begun a three-year stint on Hogan's executive committee, had more influence. "[Gorrell] is the one who did not want it to come into the firm, among other people, and I overrode him to a degree personally," Cave said in a deposition.

Cave, in a deposition, said that he thought it would be a temporary assignment. Cave scored an early victory for Boland in 1998. As part of an agreement Cave negotiated, Boland received a $2.8 million lump sum from Benevento, plus promises for additional payments for alimony, child support and other expenses.

But five years later, trouble erupted again. Boland returned to Cave, asking him to take Benevento to court to enforce the agreement. Around the same time, Boland was diagnosed with stage IV breast cancer.

Cave sued Benevento in D.C. Superior Court and, in 2005, Benevento was ordered to pay Boland $230,782 in unpaid tuition and other education expenses for the couple's sons. After Benevento, who was represented by Kuder, failed to respond to a motion seeking attorney fees, Boland was awarded an additional $453,447, plus interest. That decision was upheld by the D.C. Court of Appeals in 2006. In a footnote in the appeals court's per curiam opinion, the judges wrote, "Mr. Benevento failed to oppose either Ms. Boland's motion for attorneys' fees or her motion to amend. His appeal to this court can best be described as a quest by him to save himself from himself."

According to the D.C. complaint, during an eight-month period in 2005 and 2006, Cave and Hogan had racked up $251,281 in legal fees trying to collect on the judgment against Benevento. And the legal bills were about escalate.

As Boland's health deteriorated, she amended her will and estate documents. In January 2006, Cave was named personal representative of her will and trustee of the trust she had set up for her two sons. Boland put approximately $1.1 million in the trust and her estate was valued at about $5.6 million, according to court papers.

In her declaration of trust, Boland included a provision that directed Cave to ensure that her former husband didn't serve as the guardian of her children or have any control of their inheritance. "I realize that the foregoing limitations may seem harsh or excessive to those who are not fully cognizant of my experience with my former husband. These are my assets, however, and I prefer that they be wasted or comingled by my trustee (although I am quite sure that will not happen), rather than have the terms, assets and affairs of this trust be made known to my former husband and subject to any form of attack, control or influence by him," Boland wrote, according to court papers.

Boland also indemnified several individuals named in her trust, including Cave.

Boland died in June 2006 and the estate rolled into the trust set up for her children. Under Boland's orders, Andrew, now 23, and Brendan Benevento, 20, will have full access to the trust funds when they turn 40.

According to his deposition, before Boland's death, Cave began investigating Benevento's assets in an attempt to collect on the D.C. judgments. That effort, which involved looking into a real estate trust in Florida, continued while Cave managed the estate.

Soon Cave found himself the target of litigation. As trustee, Cave was sued in 2006 in Maryland by Boland Trane Associates and Boland's family over stock issues involving the air conditioning company. Andrew Benevento, Boland's eldest son, filed suit in 2006 against Cave in Florida, accusing him of mismanaging the estate by running up legal fees. In 2007, Andrew also filed suit in D.C. Superior Court's Probate Division seeking to have Cave removed as personal representative and trustee.

The trust litigation started taking its toll on Cave in early 2008. By that point, the trust had already paid out more than $1 million in legal fees and law firm expenses; about $450,000 of that went to Hogan, according to court records.

During a dramatic January hearing in D.C. Superior Court regarding the trust, Cave defended his stewardship and Hogan's legal fees, vowing to remain in the Boland case "until my dying day," according to court records. One month later, Senior Judge Eugene Hamilton ordered that Cave be removed as trustee, saying Cave had mismanaged the trust by spending too much money on lawyers. Court documents filed in February 2008 show that Hogan claimed it was still owed $735,000 in legal fees and expenses.

Cave appealed Hamilton's decision to the D.C. Court of Appeals, which last week heard argument. Around the same time, according to court documents, Cave met with Gorrell, Hogan's managing partner, to talk about Cave's billable hours. Cave said he had "really bad hours" because of the Boland litigation.

"I had collected no money out of this account....Everything was collapsing. I have been doing nothing but trust work, and I said — I offered frankly to withdraw from the firm," Cave said in a deposition.

Gorrell said Cave could remain at the firm, but at a significantly reduced salary. Cave asked Gorrell whether he would be able to keep his office and his assistant. "He said 'yes.' He says you just take a cut in pay," Cave said during his deposition. Cave said he took a 50% to 60% pay cut. Cave said he withdrew from the partnership, though retained the title of partner at the firm.Gorrell declined to comment.

On Aug. 11, Cave was sued again, this time by Boland's trust and estate in D.C. Superior Court. Cooter, the estate's lawyer, said the latest action is designed to coordinate the ongoing litigation in Washington, where Hogan, the estate and the trust are all based.

The complaint alleges that Cave and Hogan billed the trust more than $1.4 million in litigation fees, usually at rates between $550 and $575 per hour. It also alleges that Cave improperly inserted himself into the personal lives of her sons. "He interloped to the family house after hours, appeared uninvited at the children's birthday parties and school functions, showed up at the family house on Christmas day, took the Benevento children out to lunch and dinner, belittled Mr. Benevento, told Brendan that he suffered from depression and asked Brendan to live with him," the complaint says.

Cave, in court and in his deposition, acknowledged his close relationship with Andrew and Brendan Benevento, but explained that he was looking out for their best interests and doing what their mother had hired him to do. He also said his relationship with Boland was strengthened by his own personal tragedy. Cave said that, when he suffered a grand mal seizure, Boland got him to the hospital and then cared for him until he recovered. "She is probably the best friend I ever had in my life," Cave said. Cave's lawyer William McDaniel Jr., a Baltimore-based solo practitioner, blames Frank Benevento for ratcheting up the family legal tab.

In court papers, hearings and a deposition, Cave has steadfastly denied wasting the trust fund and has stated that the sons are spending their entire inheritance going after him. "And you asked me if I consider that a good expense," Cave told Andrew Benevento's lawyer. "I think it's an enormous waste of money they don't have."

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