By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
McDonald, it turns out, had a contract with the State of Arizona which contractually barred him from suing the state -- in essence his employer.
McDonald did not tell Rayann O'Bier about the contract.
But that contract, Rayann and her new attorney, Terry McGillicuddy, argue, is a key reason McDonald and his firm avoided going after the state in Brandon O'Bier's wrongful death.
Indeed, McDonald's firm has represented the state in 16 cases since 1982. But McDonald argues that none of those cases involved road design or signage and that attorneys are routinely granted waivers to take litigation against the state if the firm has not recently done work for the same state agency. McDonald himself was granted one such waiver in 1997.
In an interview with New Times, McDonald also defended his work and his billing practices in the case.
"They weren't overcharged," he says. "They received those itemized bills every quarter and they never said anything about them.
"I don't think we did anything wrong," he says.
McDonald, however, declined to discuss the case in detail because the case is still in litigation. He also says he can't discuss much of his work for Rayann O'Bier because he is still bound by the attorney-client privilege.
In court records, though, his position is clear: He says he made an honest mistake in not considering the road or the state to be legitimate defendants in the case.
"I have to be careful I don't violate my ethical obligation to the bar and my former clients," he says in declining to speak in detail.
"And I don't try my cases in the newspaper."
Now, Rayann and her family want to sue McDonald and his firm for legal malpractice and breach of fiduciary duty.
But that's going to be more difficult after a recent Arizona Court of Appeals decision regarding the case, a decision McGillicuddy and another attorney in the case say goes against precedent in Arizona law and reduces the O'Bier family's chances of fair compensation.
"The decision changes the landscape in cases of legal malpractice," argues McGillicuddy. "It makes it much more difficult, if not impossible, to sue an attorney for legal malpractice."
"That's nonsense," McDonald says.
In court proceedings, attorneys for McDonald's firm accuse McGillicuddy and his associates of chronic sophistry.
But Rayann O'Bier says McDonald and his team of attorneys were the real legal charlatans.
"They thought they just had some poor, dumb little girl they could grab some money from and run," Rayann says now. "I'm so angry, I feel so betrayed that I feel like we have to fight them to make sure they don't get away with trampling people. But it's awful because it means we'll just keep reliving all this over and over again. I just wish so much we could move on."
Soon after the funeral of Brandon O'Bier, Brandon's father approached Rayann about getting an attorney.
He suggested McDonald, and Rayann was impressed by the idea of having a longtime former U.S. senator's name behind her. McDonald took the case.
"I didn't know the first thing about it," Rayann says, "but he was supposed to be a good attorney."
The O'Bier family had one stipulation: They would pay McDonald on an hourly basis, not on contingency. They didn't want an attorney getting tens of thousands of dollars for a few days' work. They wanted that money in a trust fund for Brandon Jr.
McDonald called Rayann. He said he would sue Dietrich -- a simple enough process with the clear evidence.
The problem: Dietrich had only $300,000 in insurance. Similar cases, according to two personal-injury attorneys who are not involved in this case, are conservatively worth a million dollars. McDonald said he would find out if Dietrich had other assets. It would take some time.
In March, after a difficult pregnancy that had her bedridden and medicated for months, Rayann gave birth to Brandon Jr. She had massive medical bills, no income, and a baby to raise. She had to get rid of her apartment and move in with her parents. She put her and Brandon's belongings in storage, where, sometime in early 1998, they were stolen. She needed financial help immediately, but she agreed to wait for the settlement McDonald said was coming.
Rayann had been out to the site of the accident several times in the months after Brandon's death. She had followed Dietrich's path. As she did, her contempt for Dietrich waned. She could see how he made the mistake. She believed the road wasn't marked very well, especially since it's difficult to see the second two lanes of the four-lane road. Other family members agreed.
In early 1998, within three months of the accident, she says she asked McDonald: "What about the road? That intersection is really confusing."
She says McDonald told her he had checked the intersection and found nothing wrong with it. Dietrich would be the only defendant.
Unlike McDonald, Dietrich's attorney quickly decided the state was potentially liable. He hired an expert witness -- a respected highway engineer -- and the engineer reported that the road was improperly signed.
In July 1998, McDonald filed a wrongful-death claim against Dietrich on behalf of the O'Biers.