Justia Professional Malpractice & Ethics Opinion Summaries

The Superior Court of Navajo County erred when it denied Defendants’ motion for change of venue in this legal malpractice action filed by a Hospital located in Navajo County against a professional limited liability company (PLLC) organized in Maricopa County and its attorneys, both Maricopa County residents.After the Hospital sued, Defendants moved to transfer venue to Maricopa County, arguing that venue in Navajo County was improper unless a statutory exception applied under Ariz. Rev. Stat. 12-401. The trial court denied the motion, finding that venue in Navajo was proper under section 12-401(5) because the Hospital “exclusively contracted business in Navajo County,” and under section 12-401(18), reasoning that LLCs should be considered corporations for venue purposes. The Supreme Court reversed, holding (1) the PLLC was not required, expressly or by necessary implication, to perform in Navajo County; and (2) the trial court erred when it applied the subsection (18) exception on the basis that LLCs, like corporations, are amenable to veil-piercing, where venue and the alter-ego doctrine reflect different policy considerations. View "Butler Law Firm, PLC v. Honorable Robert J. Higgins" on Justia Law

The Superior Court of Navajo County erred when it denied Defendants’ motion for change of venue in this legal malpractice action filed by a Hospital located in Navajo County against a professional limited liability company (PLLC) organized in Maricopa County and its attorneys, both Maricopa County residents.After the Hospital sued, Defendants moved to transfer venue to Maricopa County, arguing that venue in Navajo County was improper unless a statutory exception applied under Ariz. Rev. Stat. 12-401. The trial court denied the motion, finding that venue in Navajo was proper under section 12-401(5) because the Hospital “exclusively contracted business in Navajo County,” and under section 12-401(18), reasoning that LLCs should be considered corporations for venue purposes. The Supreme Court reversed, holding (1) the PLLC was not required, expressly or by necessary implication, to perform in Navajo County; and (2) the trial court erred when it applied the subsection (18) exception on the basis that LLCs, like corporations, are amenable to veil-piercing, where venue and the alter-ego doctrine reflect different policy considerations. View "Butler Law Firm, PLC v. Honorable Robert J. Higgins" on Justia Law

Respondent Gregory Bombardier was a professional engineer licensed by the State of Vermont. He challenged the Board of Professional Engineering’s decision, affirmed by an administrative officer from the Office of Professional Regulation (OPR), that he engaged in unprofessional conduct. In 2014, respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Larson alleged that Atlas had notched a support beam while installing radiant heating in his home, causing his floor to buckle. Respondent inspected Larson’s home. Following respondent’s inspection, Larson hired another engineer, James Baker, to investigate the cause of the floor settlement. After receiving Baker’s report, Larson contacted respondent seeking a reinspection; respondent did not respond. The insurance company provided respondent with a copy of the Baker report, asking whether there was anything in it that would cause respondent to reinspect the property or question his own opinion. Respondent saw nothing in the Baker report that caused him to question his own opinion. In August 2014, the insurer denied Larson’s claim. Larson then filed a professional complaint against respondent. The Board agreed with respondent that there was no new information in the Baker report that would cause respondent to question his own opinion. The Board did discipline respondent, however, based on the investigation that he undertook to determine the cause of the floor buckling at the Larson home. “Had respondent undertaken only to rule out the work done by Atlas Heating and Plumbing as the cause of the damage, this would be a different case. Respondent agreed to a much broader undertaking, however, than ruling out a specific cause.” The Vermont Supreme Court determined that the question of whether a professional engineer has engaged in unprofessional conduct did not turn on whether a client was upset or had filed a complaint. “The fact that a professional engineer may properly limit the scope of his or her work and that a client is satisfied with that work are separate considerations from whether there has been compliance with applicable professional standards in performing the particular work that the professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional engineer for damages in superior court does not obviate the engineer’s independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.” Having undertaken to investigate and determine the cause of the damage, respondent was required by his professional licensure to competently perform the services he agreed to render. The Supreme Court determined that the Board’s findings supported its conclusion that respondent did not meet the essential standards of acceptable and prevailing practice in carrying out the service that his client retained him to perform. View "In re Gregory J. Bombardier" on Justia Law

Respondent Gregory Bombardier was a professional engineer licensed by the State of Vermont. He challenged the Board of Professional Engineering’s decision, affirmed by an administrative officer from the Office of Professional Regulation (OPR), that he engaged in unprofessional conduct. In 2014, respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Larson alleged that Atlas had notched a support beam while installing radiant heating in his home, causing his floor to buckle. Respondent inspected Larson’s home. Following respondent’s inspection, Larson hired another engineer, James Baker, to investigate the cause of the floor settlement. After receiving Baker’s report, Larson contacted respondent seeking a reinspection; respondent did not respond. The insurance company provided respondent with a copy of the Baker report, asking whether there was anything in it that would cause respondent to reinspect the property or question his own opinion. Respondent saw nothing in the Baker report that caused him to question his own opinion. In August 2014, the insurer denied Larson’s claim. Larson then filed a professional complaint against respondent. The Board agreed with respondent that there was no new information in the Baker report that would cause respondent to question his own opinion. The Board did discipline respondent, however, based on the investigation that he undertook to determine the cause of the floor buckling at the Larson home. “Had respondent undertaken only to rule out the work done by Atlas Heating and Plumbing as the cause of the damage, this would be a different case. Respondent agreed to a much broader undertaking, however, than ruling out a specific cause.” The Vermont Supreme Court determined that the question of whether a professional engineer has engaged in unprofessional conduct did not turn on whether a client was upset or had filed a complaint. “The fact that a professional engineer may properly limit the scope of his or her work and that a client is satisfied with that work are separate considerations from whether there has been compliance with applicable professional standards in performing the particular work that the professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional engineer for damages in superior court does not obviate the engineer’s independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.” Having undertaken to investigate and determine the cause of the damage, respondent was required by his professional licensure to competently perform the services he agreed to render. The Supreme Court determined that the Board’s findings supported its conclusion that respondent did not meet the essential standards of acceptable and prevailing practice in carrying out the service that his client retained him to perform. View "In re Gregory J. Bombardier" on Justia Law

In March 2016, Eric Clark and Clark and Associates, PLLC (collectively, Clark) sued the law firm of Jones Gledhill Fuhrman Gourley, P.A., and two individuals associated with that firm, William Fuhrman and Christopher Graham (collectively, Jones Gledhill). The genesis of this appeal started with Forbush v. Sagecrest Multi Family Property Owners’ Association, Inc., 396 P.3d 1199 (2017), a tort case in which a water heater emitted hazardous levels of carbon monoxide, killing one and seriously injuring another. In "Forbush," Clark initially represented the plaintiffs (Forbush), and Jones Gledhill represented two of the defendants, Anfinson Plumbing and Daniel Bakken. As his co-counsel, Clark enlisted the Spence Law Firm (Spence), but after approximately three years, irreconcilable differences plagued Clark and Spence’s relationship, and Clark withdrew. After withdrawing, in September 2015, Clark sent a letter to Jones Gledhill, which stated that he was “asserting an attorney lien according to I.C. 3-205, which attaches to any settlement or verdict. Please include [Clark’s] name on any settlement checks payable to the [Forbush] plaintiffs or any other payments related to a verdict or judgment.” A settlement between the Forbush defendants and plaintiffs was reached in January 2016, at which time the Forbush defendants wrote a settlement check to the Forbush plaintiffs. Without informing Clark of the settlement, Jones Gledhill forwarded the settlement check to Spence. When Clark learned of the settlement and contacted Jones Gledhill, the enforceability of Clark’s claimed lien became disputed. Clark alleged that Jones Gledhill was liable for failing to protect his attorney lien. Jones Gledhill moved to dismiss Clark’s amended complaint under Idaho Rule of Civil Procedure 12(b)(6), and the district court granted the motion. In addition to dismissing Clark’s complaint, the district court sealed several documents containing correspondence with and information about Clark’s former clients, denied Clark’s motion to amend, and awarded attorney fees under Idaho Code section 12-121 to Jones Gledhill. Clark appealed. But finding no reversible error, the Idaho Supreme Court affirmed. View "Clark v. Jones Gledhill Fuhrman Gourley" on Justia Law

Appellant SCF Consulting, LLC lodged a civil complaint against Appellee, the law firm of Barrack, Rodos & Bacine, in the common pleas court. Appellant averred that it had maintained a longstanding oral consulting agreement with the law firm, which the firm purportedly breached in 2014. According to Appellant, the arrangement was for the solicitation of institutional investors to participate in securities class actions, and remuneration was to be in the form of a two-and-one-half to five-percent share of the firm’s annual profits on matters “originated” by Appellant’s principal or on which he provided substantial work. Appellant claimed the consulting agreement qualified as an express exception to the anti-fee-splitting rule for an employee “compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” Alternatively, Appellant argued Appellee’s attempt to invoke public policy as a shield was an “audacious defense” which, if credited, would perversely reward the law firm by allowing it to profit from its own unethical conduct. The county court agreed with Appellee’s position concerning both the nonapplicability of the exception to Rule 5.4(a)’s prohibition and the unenforceability of the alleged agreement. The Pennsylvania Supreme Court concluded the ultimate outcome of this case might turn on factual findings concerning Appellant’s culpability, or the degree thereof, relative to the alleged ethical violation. The Court held only that the contract cause of action was not per se barred by the purported infraction on Appellee’s part and, accordingly, the county court’s bright-line approach to the unenforceability of the alleged consulting agreement should not have been sustained. View "SCF Consulting, LLC. v. Barrack Rodos & Bacine" on Justia Law

The Chois consulted in 2003 with defendants, who advised the Chois that an IRC 412(i) Plan retirement account would provide tax advantages, asset protection, and steady income. It required several steps including the purchase of “whole life” insurance for eventual exchange for American General Universal Life “Platinum” policies. The initial purchase was $1,275,000; a second purchase cost $439,000. The policies comprised 70-75 percent of the Plan portfolio. The IRS audited the Chois in 2006. Defendants changed their advice. Plaintiffs sued, alleging cash losses attributable to loss in value and that they were required to pay $440,000 in back taxes and interest, plus $60,000 in penalties, and faced future payments to the Franchise Tax Board of California and anticipated IRS penalties of $600,000. Defendants cross-complained for indemnity and comparative fault against American General. The trial court found the claims time-barred. The court of appeal affirmed, upholding a determination that the limitations period began to run in September 2007, when plaintiffs were “on notice” that the IRS would impose penalties, not in 2010 when penalties were assessed; the court declining to consider any tolling effect created by the ongoing fiduciary relationship; and application of the 2007 “notice” date as a bar to all claims. View "Choi v. Sagemark Consulting" on Justia Law

This appeal by allowance involved the automatic suspension of a nursing license based on a felony drug conviction. The question raised was whether, under the applicable statute, reinstatement of the license was precluded for a fixed period of ten years, or was instead permitted at an earlier date subject to the discretion of the state nursing board. Appellee held a license to practice professional nursing in Pennsylvania. In 2013, she pled guilty to one count of felony drug possession in violation of the Controlled Substance Act and received a sentence of probation without verdict. The Commonwealth then petitioned the Board to impose an automatic suspension of Appellee’s nursing license pursuant to Section 15.1(b) of the Nursing Law. As for the length of the suspension, the Board referenced two aspects of the Nursing Law reflecting different time periods. It first observed that Section 15.2 of the law prescribes a five-year minimum period. The Board then referred to Section 6(c) of the Nursing Law, which provided for a ten-year period with regard to the issuance of a new license. After quoting these provisions, the Board, without explanation, indicated that Appellee’s license would be automatically suspended for ten years. Appellee filed exceptions arguing that the ten-year suspension period was improper. Thereafter, the Board entered a final adjudication affirming the notice and order. A divided Commonwealth Court reversed the Board’s holding. The Pennsylvania Supreme Court affirmed: “it is not illogical that the General Assembly would provide for discretionary reinstatement of an automatically suspended license while also requiring a ten-year waiting period for a convicted felon who has never held a license. In the former case the Board has a record of interaction in which the licensee previously demonstrated the requisite skills, knowledge, and moral character to become a licensed professional, and has additionally fulfilled any continuing requirements for licensure over a period of time. … nothing in our decision prevents the Board from seeking revocation of a license, in accordance with the procedures outlined in the Nursing Law, following a conviction under the Controlled Substances Act. … If an automatically-suspended license is ultimately revoked, reinstatement would then be governed by Section 15.2.” View "McGrath v. Bur. of Prof. & Occ. Affairs" on Justia Law

Appellant Angeles Roca served as a common pleas judge in the family division of the First Judicial District, Philadelphia County. Her term overlapped with those of former Philadelphia Municipal Court Judges Joseph Waters and Dawn Segal. During this period, the FBI was investigating Waters’ activities; the investigation included wiretap surveillance of his telephone communications. Several conversations between Waters and Appellant were recorded in 2011 and 2012. In 2012, Appellant asked Waters for advice on how her son, Ian Rexach, should proceed relative to a tax judgment. Appellant learned that Segal would not be presiding over these types of petitions after June 29, 2012; seeking to ensure that Segal presided over her son’s petition, Appellant called Waters to encourage him to intervene. Segal reviewed the petition for reconsideration and issued a rule to show cause why the relief requested should not be granted. Although Segal did not preside over Rexach’s case thereafter, she called Waters to advise him that she “took care of it” and to “tell her it’s done.” Waters called Appellant and discussed the matter, confirming that it had been “taken care of” by Segal. A default judgment against Rexach was ultimately vacated and the case against him was withdrawn upon his payment of $477 in taxes. In 2015, the Judicial Conduct Board sent Appellant informal letters of inquiry concerning her contacts with other judges. At the time, Appellant was unaware that her conversations with Waters had been recorded. In her written responses, Appellant made several representations which were inconsistent with the content of the recorded phone conversations. In 2016, the Board filed an amended complaint with the CJD alleging that Appellant had violated Article V, Sections 17(b) and 18(d)(1) of the Pennsylvania Constitution, as well as several provisions of Pennsylvania’s former Code of Judicial Conduct (the “Code”). On appeal, Appellant alleged that the CJD’s removal-and-bar sanction was unduly harsh under the circumstances. She requestd a lesser penalty. In this respect, Appellant maintained, first, that the Pennsylvania Supreme Court was not bound by a state constitutional provision, which limited the Court's review of the sanction imposed by the CJD to whether it was lawful. In the alternative, Appellant proffered that the punishment was not lawful because it was inconsistent with prior decisions in cases where the misconduct was not extreme. The Supreme Court found the penalty imposed by the CJD was lawful. That being the case, the Court lacked authority to overturn it. View "In Re: Angeles Roca, Judge" on Justia Law

The Supreme Court affirmed the denial of Plaintiffs’ motion to substitute Judge Edward P. McLean in this legal malpractice case.Plaintiffs sued Defendants for legal malpractice. After the Supreme Court reversed and remanded for an order of summary judgment, Judge McLean assumed jurisdiction in this case. After the trial, Judge McLean retired, and Chief Justice McGrath issued an order calling Judge McLean back into active service to preside over the case. Judge McLean then entered a final judgment in the case. The Supreme Court reversed and remanded for a new trial to determine the amount of Plaintiffs’ damages. Thereafter, Plaintiffs filed a motion for substitution of Judge McLean. Judge McLean denied the motion as untimely. The Supreme Court affirmed, holding that the district court correctly denied Plaintiffs’ motion where Plaintiffs had actual notice of Judge McLean’s assumption of jurisdiction, and Judge McLean retained jurisdiction after the Supreme Court reversed and remanded in Labair II and the Labairs filed their motion for substitution after the twenty-day deadline under Mont. Code Ann. 3-1-804(12). View "Labair v. Carey" on Justia Law