PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DYNTEL CORPORATION; DYNCORP,
Plaintiffs-Appellants,

v.

SUSAN W. EBNER,
                                                                      No. 96-2369
Defendant-Appellee,

and

RUTH MORREL,
Counter-Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-897-A)

Argued: June 5, 1997

Decided: August 5, 1997

Before WILKINSON, Chief Judge, and LUTTIG and
WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed and remanded with instructions by published opinion. Chief
Judge Wilkinson wrote the opinion, in which Judge Luttig and Judge
Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Howard Barry Possick, ARENT, FOX, KINTNER,
PLOTKIN & KAHN, Washington, D.C., for Appellants. Mark Doug-
las Wegener, HOWREY & SIMON, Washington, D.C., for Appellee.
ON BRIEF: Howard V.B. Sinclair, ARENT, FOX, KINTNER,
PLOTKIN & KAHN, Washington, D.C., for Appellants. Edward
Han, Martin F. Cunniff, Kirstin A. Mueller, HOWREY & SIMON,
Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

DynCorp sued attorney Susan Ebner, alleging that she had
breached her ethical "duty of loyalty" to its subsidiary DynTel. The
district court dismissed this claim with prejudice, finding that Dyn-
Corp had failed to state a claim and had brought suit in the wrong
forum. DynCorp's challenge of these findings on appeal is meritless.
As the district court correctly held, any ethical charges should have
been resolved in the District of Columbia, where the contracts litiga-
tion underlying the ethics debate was taking place. Furthermore, we
are convinced that DynCorp waged spurious ethical warfare in Vir-
ginia in an effort to apply leverage in the underlying District of
Columbia disputes. Accordingly, we affirm the judgment of the dis-
trict court and remand this case for the entry of appropriate sanctions
against DynCorp and its counsel.

I.

On October 31, 1994, Cincinnati Bell sold its wholly-owned sub-
sidiary, CBIS Federal Inc., to DynCorp. CBIS provided services
under contract to the federal government. Upon the sale to DynCorp,
CBIS was renamed DynTel. In connection with the sale, Cincinnati
Bell agreed to indemnify DynCorp for certain legal proceedings
against CBIS and to defend CBIS in those matters.

In October 1995, a dispute arose between DynTel and the govern-
ment regarding a defect in CBIS's performance prior to its sale to
DynCorp. As a result, the government began withholding payments
from DynTel. DynCorp contended that Cincinnati Bell was obligated
to indemnify DynCorp for this loss -- a claim which Cincinnati Bell

                    2
denied. However, while reserving its rights as to DynCorp's indemni-
fication claim, Cincinnati Bell brought an action on behalf of CBIS
and DynTel in the Court of Federal Claims challenging the govern-
ment's position.

Shortly thereafter, DynCorp, in response to Cincinnati Bell's con-
tinuing denial of its duty to indemnify, sought to compel arbitration
before the American Arbitration Association. The dispute between the
parties came before the United States District Court for the District
of Columbia, which entered an order compelling arbitration.

The current dispute arises from the involvement of Cincinnati Bell
attorney Susan Ebner in the various legal disputes between it and
DynCorp. Ebner has been employed by Cincinnati Bell since August
31, 1992 as in-house counsel. Cincinnati Bell pays Ebner's salary and
benefits, and also provides office space, secretarial support, and busi-
ness expenses. In return, Ebner provides exclusive, full-time legal ser-
vices to Cincinnati Bell.

Before the sale of CBIS to DynCorp, Ebner was involved in vari-
ous CBIS legal matters. For example, Ebner participated as counsel
for CBIS in a number of lawsuits, including federal contract litigation
involving bid protests before the General Services Administration
Board of Contract Appeals. However, CBIS never employed or paid
Ebner, nor gave her any employment benefits.

Shortly after DynCorp bought CBIS, DynCorp informed Ebner that
it would not offer her a job. In order to avoid any confusion as to
whom she represented, Ebner relocated her office from the Cincinnati
Bell offices which adjoined those of the newly renamed DynTel. She
also informed DynCorp's legal department that she would be unavail-
able to give legal advice to DynTel or DynTel's employees. Ebner has
never been retained by DynCorp or DynTel, and Ebner has never
identified herself as counsel for DynCorp or DynTel, nor has she
authorized anyone else to so identify her.

Ebner represented Cincinnati Bell in the United States District
Court for the District of Columbia in the proceedings that led to arbi-
tration, and DynCorp made no objection to her participation. How-
ever, after the order for arbitration was granted, DynCorp contacted

                    3
Ebner to demand that she recuse herself from the arbitration, threaten-
ing a lawsuit and a report to the D.C. Bar if she refused. In response,
Ebner voluntarily submitted the issue to the D.C. Bar Legal Ethics
Committee on May 3, 1996. The Chair of the Committee stated:

          [I]t does not appear that a lawyer-client relationship exists
          or ever existed between Attorney X [Ebner] and company
          C [DynCorp]. It appears that Company A [Cincinnati Bell]
          has been the sole employer of Attorney X, and therefore the
          only party with whom Attorney X has a lawyer-client rela-
          tionship.

In a further attempt to resolve this dispute, Ebner and Cincinnati Bell
suggested that the conflict-of-interest dispute be submitted to the arbi-
tration panel as the first issue in the arbitration. The panel indicated
that it was willing to hear the dispute if both sides agreed to submit
it, but DynCorp rejected this proposal. DynCorp also rejected having
the issue decided by a neutral third party such as a law professor spe-
cializing in legal ethics.

On June 28, 1996, DynCorp brought this action in the United
States District Court for the Eastern District of Virginia. While Dyn-
Corp's complaint failed even to specify a distinct cause of action for
professional malpractice, it sought an order enjoining Ebner from "vi-
olation of her duty of loyalty to DynTel and DynCorp" and requiring
Ebner "to comply with her duty of loyalty to DynTel in connection
with DynTel's litigation with the Government and her serving as
counsel in such litigation." The complaint also sought unspecified
damages.

On August 14, 1996, the district court, after a conference with both
parties, issued an order requiring DynCorp to show cause why its
complaint should not be dismissed for failure to state a claim. After
a hearing, the court dismissed DynCorp's complaint with prejudice
for failure to state a claim and failure to seek relief in the proper
forum. DynCorp now appeals.

II.

As an initial matter, DynCorp disputes the district court's conclu-
sion that this litigation was brought in the wrong forum. It argues that

                     4
since the underlying disputes were brought in different tribunals, it
was most convenient to have the issue of Ebner's alleged conflict of
interest settled in one separate case. Furthermore, DynCorp contends
that no forum other than the Eastern District of Virginia could have
provided it with a damages remedy.

The Supreme Court has identified three factors which should be
considered by a court in assessing the propriety of a federal forum:
"the inconvenience of the federal forum, the desirability of avoiding
piecemeal litigation, and the order in which jurisdiction was obtained
by concurrent forums." Colorado River Water Conservation District
v. United States, 424 U.S. 800, 818 (1976) (citations omitted). All
three factors support the district court's conclusion that DynCorp
improperly brought suit in the Eastern District of Virginia.

The Eastern District of Virginia was clearly not the most conve-
nient forum for this dispute. DynCorp sought a declaration that Ebner
was DynTel's counsel and an injunction forbidding Ebner from
appearing as Cincinnati Bell's counsel in contractual indemnification
disputes with DynCorp or DynTel. In essence, DynCorp asked a fed-
eral court in Virginia to interfere with ongoing litigation in the Dis-
trict of Columbia. If DynCorp had any objections to Ebner's
participation in the underlying disputes, it could have moved for her
disqualification before any of the four forums that had substantial
familiarity with the relevant facts and a direct interest in Ebner's pro-
fessional conduct -- the American Arbitration Association, the Court
of Federal Claims, the United States District Court for the District of
Columbia, and the District of Columbia Bar. As the district court
noted, "It's for the judge who is presiding over a proceeding to decide
whether there is an ethical problem in the quality of the representation
of the parties."

Proceeding with this litigation in the Eastern District of Virginia
only added to its piecemeal character. To involve yet another tribunal
in an already complicated piece of litigation was clearly unjustified
given the profusion of existing forums. DynCorp rejected Ebner's
attempts to resolve the ethics conflict before the arbitrators, the D.C.
Bar ethics committee, or any other forum in the District of Columbia.
Instead DynCorp brought suit in the Eastern District of Virginia, a

                     5
forum with absolutely no connection to the parties or the dispute, thus
deliberately opening yet another litigation front.

We are unmoved by DynCorp's claim that it chose the Eastern Dis-
trict of Virginia because damages were unavailable in other forums.
DynCorp offers only the conclusory assertion that"DynTel has suf-
fered damages as a consequence of defendant's conduct, for which
Ebner is liable." DynCorp's complaint identifies no specific damages
suffered by the company, asking only for "damages against Ebner in
an amount to be determined at trial." These conclusory assertions
reveal that the damages claim was at best pro forma, and at worst was
added in a calculated effort to harass Ebner and Cincinnati Bell.
Indeed, as the district court held, DynCorp's failure to plead any
actions by Ebner which proximately caused identifiable damages to
DynCorp would have precluded a damages award under Virginia law.
See Hendrix v. Daugherty, 457 S.E.2d 71, 74 (Va. 1995).

The order in which jurisdiction was obtained in other tribunals also
supports the conclusion that DynCorp should not have brought suit in
the Eastern District of Virginia. Both the action before the Court of
Federal Claims and DynCorp's demand for arbitration before the
American Arbitration Association were filed nearly six months before
this complaint. In addition, we note that DynCorp never lodged any
protest to Ebner's representation of Cincinnati Bell until the parties
were ordered to arbitrate. The timing of DynCorp's protest strongly
suggests that this suit was filed in an attempt to leverage Cincinnati
Bell in the underlying contractual disputes. The fact that DynCorp
fought any effort to resolve this dispute in a proper forum only bol-
sters this conclusion.

III.

Ordinarily, the conclusion that a case had been filed in an improper
forum would lead us to dismiss it without prejudice. However, the
fact that the district court dismissed appellants' claim with prejudice,
and that a motion for sanctions against appellants has been pressed,
requires that we review the district court's conclusion that DynCorp
failed to state a claim upon which relief could be granted. We agree
with the district court that DynCorp's suit lacked any legally sound
or factually supportable basis.

                     6
The district court concluded that DynCorp's claim that Ebner vio-
lated a "duty of loyalty" to DynCorp failed to state a claim upon
which relief could be granted.1 DynCorp disputes this conclusion,
arguing that under Virginia law it is clear that a lawyer owes his or
her client a fiduciary duty. DynCorp's assertion is correct, as far as
it goes. What DynCorp fails to recognize, however, is that breach of
such a duty is but one element of a properly pleaded case for profes-
sional malpractice, which under Virginia law requires "[1] an
attorney-client relationship, [2] breach of the standard of care, and [3]
damages proximately caused by negligence." Carstensen v. Chrisland
Corp., 442 S.E.2d 660, 668 (Va. 1994). Indeed, the Virginia Supreme
Court has clearly stated that "[a] mere allegation of negligence or
breach of a duty [is] insufficient to support an action for legal mal-
practice." Gregory v. Hawkins, 468 S.E.2d 891, 893 (Va. 1996).

DynCorp's complaint does not even use the word "malpractice,"
and it makes no attempt to properly plead the elements of such a
claim. DynCorp argues, however, that despite the fact that its com-
plaint nowhere refers to any malpractice claim, it intended to plead
such a theory. Even if we were to accept this assertion, DynCorp's
claim was still properly dismissed with prejudice. DynCorp's asser-
tion of malpractice fails because of one basic flaw-- absolutely noth-
ing indicates that Ebner ever entered into an attorney-client
relationship with either DynCorp or DynTel. Such a relationship is
fundamental to a malpractice action. Carstensen , 442 S.E.2d at 668.

The primary evidence that no attorney-client relationship existed in
this instance is DynCorp's own decision not to retain Ebner as coun-
sel to DynTel after CBIS was sold. Certainly neither DynCorp nor
DynTel ever paid Ebner for any services rendered, and, indeed, Ebner
testified that when she went to meet with DynCorp personnel after the
_________________________________________________________________
1 In support of their positions, the parties presented evidence to the dis-
trict court, including various documents, correspondence, and affidavits.
The district court found this evidence insufficient to support DynCorp's
claim, in effect holding that even if a malpractice claim had been prop-
erly pled, Ebner would have been entitled to summary judgment. See
George v. Kay, 632 F.2d 1103, 1106 (4th Cir. 1980) (where district court
reviews evidence outside of the complaint on a 12(b)(6) motion, decision
to dismiss may be treated as a grant of summary judgment).

                     7
sale of CBIS, she was required to sign in as a visitor, wear a visitor's
badge, and be escorted at all times by a DynCorp employee. This
hardly exemplifies a belief by DynCorp that Ebner was its or Dyn-
Tel's attorney.

Despite the foregoing circumstances, DynCorp maintains that
Ebner was DynTel's attorney. As a basis for finding an attorney-client
relationship, DynCorp first relies upon the fact that Ebner did legal
work for CBIS before its sale to DynCorp. This gets DynCorp
nowhere. Ebner's legal work for CBIS prior to its sale cannot estab-
lish an ongoing attorney-client relationship with DynCorp after the
sale. See International Electronics Corp. v. Flanzer, 527 F.2d 1288,
1292 (2d Cir. 1975). Here, as in Flanzer, there is no allegation that
Ebner has attempted to use any confidences she gained while working
for CBIS to the advantage of a third party. Id . Indeed, the only party
she does represent, Cincinnati Bell, is the same entity which she rep-
resented when she did legal work for CBIS, which was then Cincin-
nati Bell's wholly owned subsidiary. Under these circumstances,
Ebner's pre-sale relationship with CBIS is not a ground for disqualifi-
cation or a malpractice claim.

Second, DynCorp argues that Ebner is DynTel's attorney because
she was listed as "of counsel" on certain filings brought on behalf of
DynTel and CBIS before the Federal Court of Claims after the sale
of CBIS. DynCorp, however, conveniently ignores the fact that
Ebner's participation before the Federal Court of Claims was merely
to protect the interest of Cincinnati Bell as the potential indemnitor
in that action. Indeed, Cincinnati Bell had retained independent coun-
sel to represent DynTel's interests in that litigation. The papers filed
in that case make this relationship clear, referring to Ebner as repre-
senting only Cincinnati Bell. It is further clear from correspondence
in the record that DynCorp fully understood the nature of Ebner's role
in the litigation. Letters from DynCorp's legal department to Ebner
use the terms "you" and "Cincinnati Bell" interchangeably, reflecting
DynCorp's perception that Ebner was Cincinnati Bell's representa-
tive. In fact, those letters are addressed to "Susan Warshaw Ebner,
Esq., Special Counsel, Cincinnati Bell, Inc."

Lastly, and most tellingly, up until the arbitration order was issued,
Ebner took positions adverse to DynCorp on behalf of Cincinnati Bell

                     8
without any objection. For example, Cincinnati Bell was required to
put DynCorp on notice of conduct Cincinnati Bell regarded as violat-
ing the sale agreement. DynCorp raised no objection when Ebner
acted on behalf of Cincinnati Bell to give DynCorp such notice. In
addition, DynCorp did not object when Ebner represented Cincinnati
Bell in the proceedings to compel arbitration. In light of its past
acceptance of Ebner's representation of Cincinnati Bell, DynCorp's
current contention that Ebner was DynTel's attorney all along strains
credulity to the breaking point.

IV.

Finally, we address Ebner's motion for sanctions under Fed. R.
App. P. 38. Ebner asserts that DynCorp brought this suit for purely
predatory purposes. Our review of DynCorp's actions compels us to
agree.

DynCorp first objected to Ebner's work for Cincinnati Bell when
the parties were ordered to arbitrate their dispute regarding Cincinnati
Bell's contractual indemnification obligations to DynCorp. At that
point, DynCorp's silence on the issue was quickly replaced by a
stream of threats. Despite this sudden objection, however, DynCorp
was totally resistant to a convenient and efficient resolution of the dis-
pute, rejecting several reasonable alternatives offered by Ebner.
Indeed, despite the fact that DynCorp threatened to report Ebner to
the D.C. Bar, it was unwilling to credit the opinion of the Chair of the
D.C. Bar Legal Ethics Committee that Ebner's representation of Cin-
cinnati Bell was entirely ethical. Rather, it insisted on pressing this
lawsuit in a forum completely unrelated to the disputes underlying
this case. In addition, it is clear that there was absolutely no legal or
factual foundation for DynCorp's assertion that Ebner ever acted as
DynTel's attorney. Given the lack of any objective basis for Dyn-
Corp's complaint and the timing of its opposition to Ebner's represen-
tation of Cincinnati Bell, we must agree with Ebner that DynCorp's
staging of an ethical attack was "a thinly disguised attempt by Dyn-
Corp to gain a tactical advantage in a contractual dispute with Cincin-
nati Bell."

No attorney should be subject to the sort of predatory tactics dem-
onstrated by DynCorp and its counsel in this case. The zealous repre-

                     9
sentation of one's own client need not entail devouring opposing
counsel in collateral malpractice litigation. Ebner has been the victim
of such an attack, and we refuse to allow suits such as this one to
become a routine risk of legal practice. Courts exist to adjudicate
legitimate claims, not to provide a forum for vexatious tactics whose
only denouement can be professional self-destruction.

V.

For the foregoing reasons, we affirm the judgment of the district
court. We grant appellee's motion for sanctions under Fed. R. App.
P. 38, and we remand this case to the district court with directions to
assess the amount of attorney's fees and costs incurred in connection
with this appeal.2 On remand, the district court may, in its discretion,
entertain a motion for sanctions under Fed. R. Civ. P. 11 or related
provisions.

AFFIRMED AND REMANDED WITH INSTRUCTIONS
_________________________________________________________________
2 No sanctions shall be awarded in connection with the argument of the
Rule 38 motion itself.

                    10
