Justia Professional Malpractice & Ethics Opinion Summaries

Pursuant to a former version of Code of Civil Procedure section 128.5, the trial court ordered CPF Vaseo Associates, LLC (CPF) and its counsel, John Byrne, to pay Bruce and Barbara Gray (the Grays) just over $30,000 in fees and costs. Yet a mandatory procedural prerequisite to that award was never fulfilled. The motion requesting sanctions was served and filed on the same day, and no safe harbor period was afforded for CPF and Byrne to correct the challenged conduct. While a panel of the Court of Appeal previously determined that no such safe harbor applied to a sanctions motion like the one here, the Legislature's subsequent clarifying amendment of the section and the contrary opinion of another court convinced the Court to now reach a different conclusion. For that reason, the Court reversed and remanded for further proceedings. View "CPF Vaseo Associates, LLC v. Gray" on Justia Law

Shaf, a New Jersey company, sells apparel. Seventh Avenue, a Wisconsin-based catalog merchandiser, sells clothing protected by a trademark. After a dispute over Shaf’s alleged infringement of Seventh Avenue’s trademark, the parties entered into a consent agreement. Months later, Seventh Avenue discovered what it saw as continuing infringement by Shaf and moved to hold Shaf in contempt. Shaf was represented in the district court by Milwaukee counsel. The attorney received an email notification (from the court’s electronic docketing system) of the motion upon its January 17 filing, indicating that response was due January 24. Shaf failed to respond. The court scheduled a hearing for February 14. Nobody for Shaf appeared. The court held Shaf in contempt and required that it pay Seventh Avenue’s fees and costs. The contempt order prompted Shaf's local counsel to move for reconsideration, explaining that counsel was traveling internationally when the motion was filed. Counsel returned to work five days before Shaf’s written response was due and 26 days before the hearing, but took several weeks to catch up on his email. Shaf’s request also explained that local counsel believed national counsel would attend to any ongoing needs in the case. The court denied the motion to reconsider. Seventh Avenue supplemented its fee petition to reflect additional expenses. The Seventh Circuit affirmed an award of $34,905 in fees and costs. While the delayed response was better than no response, the court acted within its discretion to find that Shaf’s initial unresponsiveness warranted a sanction. View "Seventh Avenue, Inc. v. Shaf International, Inc." on Justia Law

Finance Holding Company, LLC (Finance) obtained a judgment against Dominque Molina for about $50,000 plus interest and attorney fees. In judgment enforcement proceedings, Finance sought documents from Molina's employer, The American Institute of Certified Tax Coaches, Inc. (Institute). Finance requested numerous categories of business, tax, and bank records, without limiting the request to information relevant to Molina. The court overruled the Institute's objections and ordered the Institute "to produce for inspection and copying all the demanded documents." On appeal, the Institute argued the document production order was overbroad under the statute governing third party discovery in judgment enforcement proceedings. The Court of Appeal determined the order was appealable, and statutorily overbroad: the court did not have the authority to order the expansive document production that went far beyond the statutory guidelines. The Court remanded for the trial court to narrow the order to require production only of those documents pertaining to Molina's compensation, property, or services, and/or the Institute's debts owed to Molina. View "Finance Holding Co., LLC v. The American Inst. of Certified etc." on Justia Law

Genisman and Cline co-owned ECI and Coast. Genisman wanted Cline to buy out his interests and sought to be released from personal guarantees to lenders, including Blumenfeld. Genisman retained the Hopkins law firm. Initial drafts of the transaction documents structured it as a buyout. At some point, Hopkins revised the documents to implement a redemption of Genisman’s interest by the companies. Genisman, signed the documents unaware of the change. In July 2012, Blumenfeld sued Genisman for intentional misrepresentation, negligent misrepresentation, and constructive fraud, alleging that Blumenfeld had loaned $3.5 million to Coast, secured by its assets and the personal guarantees; that he released Genisman from his personal guarantees; that $750,000 remained unpaid when, in 2009, Coast became insolvent; that, in 2012, Blumenfeld learned that the documents called for Coast to pay Genisman $1,115,000; and that he would not have agreed to release Genisman from his personal guarantees had Genisman properly advised him of the terms. Genisman’s new law firm billed Genisman $2,475.40 to defend. Genisman sued Hopkins in December 2013. The court affirmed rejection of the suit as untimely under Code of Civil Procedure 340.6(a), which requires legal malpractice claims be brought one year after actual or constructive discovery. View "Genisman v. Hopkins Carley" on Justia Law

Thomas Lanham appealed the dismissal of his legal malpractice action against his former attorney, Douglas Fleenor. Fleenor represented Thomas in a will contest regarding Thomas’s father. After the magistrate court ruled against Lanham at the summary judgment stage, Fleenor filed an untimely appeal, which was rejected on that basis. Because the appeal brought by Fleenor was untimely, Lanham brought a legal malpractice action against Fleenor in district court, alleging that the failure to timely appeal the magistrate’s ruling proximately caused him financial loss because he had a meritorious appeal that he never got to pursue due to Fleenor’s negligence. The district court dismissed Lanham’s legal malpractice claim, reasoning that a timely appeal by Fleenor would have been unsuccessful on the merits; hence, Lanham did not suffer any injury as a result of Fleenor’s alleged malpractice. Lanham argued on appeal to the Idaho Supreme Court that the interpretation of the will, in which the deceased attempted to disinherit Lanham, did not properly dispose of all of the estate because it did not contain a residuary clause. Lanham argued these failures should have resulted in various assets passing to him through intestate succession. Finding no reversible error, the Supreme Court affirmed the district court’s dismissal of Lanham’s malpractice case. View "Lanham v. Fleenor" on Justia Law

The Alabama Peace Officers' Standards and Training Commission ("the Commission") petitioned the Alabama Supreme Court for mandamus relief to direct the circuit court to dismiss a complaint against it filed by Bryan Grimmett. The Commission revoked Grimmett's law-enforcement certification. The Court of Civil Appeals reversed that portion of the trial court's judgment fully reinstating Grimmett's law-enforcement certification because Grimmett had conceded in the record that he had not satisfied the 80-hour refresher-training course required for reinstatement of his certification. At the time the Court of Civil Appeals issued its May 2017 opinion, the Commission had in place a rule requiring a previously certified law-enforcement officer absent from employment as a law-enforcement officer for two years or more to successfully complete an approved 80-hour academy recertification course. In October 2017, the Commission amended its rule on certification to include, among other things, a provision that, if the Commission approves an application for admission to certification training of a law-enforcement officer absent from law enforcement for more than 10 years, that applicant must satisfactorily complete the regular basic-training academy, which is a 520-hour course. It was undisputed that Grimmett had been not employed as a law-enforcement officer since 2000. Grimmett filed his complaint with the circuit court seeking declaratory and injunctive relief against the Commission, asserting that he was provisionally offered a job in law enforcement in December 2017; that he attempted to enroll in the 80-hour refresher- training program; and that the Commission refused to allow him to enroll in the refresher-training program, instead requiring him to complete the full 520-hour basic-academy training course. The Commission moved the circuit court to dismiss the complaint on the ground that the Commission, as an agency of the State of Alabama, is entitled to sovereign immunity. Finding that the Commission established a clear legal right to mandamus relief, the Alabama Supreme Court granted its petition and directed the circuit court to dismiss Grimmett's complaint. View "Ex parte Ex parte Alabama Peace Officers' Standards and Training Commission." on Justia Law

Licensed nurses may be disciplined if they engage in “unprofessional conduct.” The applicable Delaware statute did not define “unprofessional conduct,” so the Board of Nursing adopted a rule to flesh the term out. Two nurses who held supervisory roles at a correctional facility were disciplined by the Board under that rule after they participated in the retrieval of medication from a medical waste container for eventual administration to an inmate. The nurses appealed to the Superior Court, and the court set their discipline aside. The court read the Board’s rule to require not just proof that the nurses breached a nursing standard, but also proof that in doing so, they put the inmate or the public at risk. And in the court’s view, the State had not made that showing. Because the Board applied the correct standard and its decision was supported by substantial evidence, the Delaware Supreme Court affirmed its decision and reversed the Superior Court. View "Delaware Board of Nursing v. Francis" on Justia Law

At issue in this civil lawsuit was whether a stipulation to a discovery schedule that expressly waived the usual requirement that written reports be produced and exchanged summarizing the anticipated testimony of all expert witnesses designated to appear at trial continued when the district court entered a scheduling order that extended the deadline of identifying expert witnesses but said nothing about whether the stipulation to waive expert reports continued in effect or not.The Supreme Court held (1) the intent of the parties controlled the duration and scope of the stipulation; and (2) in the absence of any intention that the stipulation be deemed to have been superseded by the new order, the stipulation should be read to continue in effect until and unless expressly vacated either by the court or by a subsequent agreement between the parties. View "Dechambeau v. Balkenbush" on Justia Law

Alaska’s medical peer review privilege statute protected discovery of data, information, proceedings, and records of medical peer review organizations, but it did not protect a witness’s personal knowledge and observations or materials originating outside the medical peer review process. A hospital invoked the privilege in two separate actions, one involving a wrongful death suit against a physician at the hospital and the other involving both a medical malpractice claim against the same physician and a negligent credentialing claim against the hospital. In each case the superior court compelled the hospital to disclose materials related to complaints submitted about the physician and to the hospital’s decision to grant the physician medical staff membership. The hospital and the doctor sought the Alaska Supreme Court's review of the discovery orders. Because the Supreme Court concluded these discovery orders compelled the hospital to disclose information protected by the peer review privilege, it reversed the discovery orders in part. Furthermore, the Court held that the false information exception to the privilege provided in AS 18.23.030(b) applied to actions for which the submission of false information was an element of the claim and thus did not apply here. View "Mat-Su Valley Medical Center, LLC v. Bolinder" on Justia Law

Belsen Getty, LLC, a registered investment adviser owned by Terry Deru, obtained a claims-made financial-services-liability policy (the Policy) from XL Specialty Insurance Company covering Belsen Getty and its advisers for the period for one year. Under the policy, XL had no duty to defend. During the policy period James, Jenalyn, and Wade Morden brought claims against Belsen Getty and Deru alleging improper and misleading investment advice. XL denied coverage, asserting the Mordens’ claims and claims brought by the Securities and Exchange Commission (SEC) before the policy period concerned “Interrelated Wrongful Acts,” as defined by the Policy, and that the Policy therefore required treating the two claims as one claim made before the policy period. Belsen Getty and Deru then settled with the Mordens, assigning their rights against XL; and the Mordens sued XL in federal district court, raising the assigned claims that XL breached its covenant of good faith and fair dealing and its fiduciary duties to Belsen Getty and Deru in denying coverage under the Policy. XL counterclaimed that the Policy’s Interrelated Wrongful Acts provision precluded coverage. The Mordens moved for partial summary judgment on the counterclaim and on several of XL's affirmative defenses. XL moved for summary judgment based on the policy and for failure to prove bad faith or breach of fiduciary duty. The district court denied XL's counterclaim, but granted summary judgment on the bad-faith and fiduciary-duty claims. The Mordens appealed summary judgment against them on their bad-faith and fiduciary-duty claims and on the denial of their motion to amend their complaint to add a breach-of-contract claim. XL cross-appealed the summary judgment against it on its counterclaim that the Policy’s Interrelated Wrongful Acts provision barred all the Mordens’ claims. The Tenth Circuit reversed the denial of XL’s motion for summary judgment on its counterclaim: this reversal undermined the Mordens’ challenges to the summary judgment against them and the denial of their motion to amend. The Court therefore affirmed summary judgment against the Mordens on their claims and the denial of their motion to amend. View "Morden v. XL Specialty Insurance" on Justia Law