Justia Professional Malpractice & Ethics Opinion Summaries

Articles Posted in Kentucky Supreme Court

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While Brenda Osborne was at home alone, an airplane pilot crashed his airplane into Osborne's home. Osborne subsequently hired Attorney to assist her recovering her losses from the pilot, but when the lawsuit was finally filed, the federal court dismissed the action as barred by limitations. Osborne filed this action against Attorney asserting breach of contract, legal malpractice, and fraud and deceit. A jury found in favor of Osborne, resulting in a judgment against Attorney in excess of $5 million. The court of appeals affirmed the judgment in part but vacated a large portion of the damage award. The Supreme Court reversed, holding (1) the trial court properly tried this case using the suit-within-a-suit method but erred when it failed to instruct the jury on Pilot's negligence, thus resulting in Osborne's failure to establish that Attorney's malpractice proximately caused her loss; (2) emotional-distress plaintiffs must first satisfy the elements of a general negligence claim; and (3) punitive damages are not recoverable against an attorney in a legal malpractice case. View "Osborne v. Keeney" on Justia Law

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Roger Elliott, who served as a district court judge for almost twenty-five years and who was a member of the Senior Status Judge Program, was indicted on one count of theft of labor already rendered. Elliott entered an Alford plea to the charge. The circuit court entered an order granting Elliott a pretrial diversion. The judicial conduct commission then issued an order of public reprimand. As a condition of the reprimand, Elliott agreed to resign from the judge program and not seek to re-enter it. As a follow-up to resolve the temporary suspension of his bar license, Elliott and the office of bar counsel agreed to a negotiated sanction. Elliott requested that the Supreme Court enter an order suspending him from the practice of law for two years with one year probated and one year to serve, effective from the date of the order, on conditions that Elliott continue compliance with the terms and provisions of his pretrial diversion contract and that he incur no new disciplinary charges during the probationary period. The Court concluded that the sanctions were appropriate.

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Appellant GMAC Mortgage Corporation, through its attorneys Appellants Morgan & Potter, Attorneys, P.S.C. filed a disciplinary complaint against Appellee Noel Botts. Botts had represented GMAC's successor-in-interest in a foreclosure action. The trial commissioner conducted an evidentiary hearing and ultimately determined that the Kentucky Bar Association failed to prove by a preponderance, that Botts committed any of the acts or omissions charged. The Board of Governors accepted the trial commissioner's determination, and charges against Botts were ultimately dismissed. Subsequently Botts filed suit against GMAC and Morgan & Pottinger in circuit court, requesting relief from pecuniary and professional harm he allegedly suffered as a result of the disciplinary complaint. In his suit, Botts alleged wrongful use of civil proceedings, defamation and slander, abuse of process, fraud and outrageous conduct. Appellants filed numerous motions to dismiss based on claims of immunity, all of which were denied. Because Appellants claimed immunity as the basis for their motions, the order is appealable. Because the claim raises an issue of statewide importance, the Supreme Court granted Morgan & Pottinger's motion to transfer. State law holds that any statement made in the institution of, or during the course of an attorney disciplinary proceeding, is privileged so long as it is material, pertinent and relevant to that proceeding. Even if it patently fails or is entered with malice, the Kentucky "judicial statements" privilege is absolute and would still apply. The Court noted that Botts' allegations of wrongful use of civil proceedings, abuse of process, fraud and outrageous conduct are not based singly on Appellants' statements contained in the Bar Association complaint, but also on the act of filing the complaint. Whether the "judicial statements" privilege encompasses the act of filing the complaint is a matter of first impression. The Court decided that any communication or statement made to the Bar Association during the course of a disciplinary hearing or investigation, including the contents of the complaint initiating such proceedings, are absolutely privileged and extend to the act of filing the complaint. The Court remanded the case back to the circuit court for additional fact finding to address the basis of Botts' claims for fraud, defamation and slander.