Justia Professional Malpractice & Ethics Opinion Summaries

Articles Posted in Civil Procedure
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In this case, the Supreme Court of the State of Alaska was tasked with determining whether a judgment against a self-represented litigant, Jon Buchholdt, was void due to improper service of process. Jeremy Nelson, Buchholdt's former client, had sued him for legal malpractice and won a judgment of $200,000, but Buchholdt argued that he was not properly served and therefore the court lacked personal jurisdiction over him.The main issue in this case was whether Buchholdt was properly served with the summons and complaint by certified, restricted mail sent to his law office, which was rerouted to his home and signed by his alleged agent, "Suz Miller." Buchholdt contended that he was not properly served as he never personally signed for the service, and therefore the court lacked personal jurisdiction over him.The court held that Buchholdt failed to meet his burden of demonstrating that the judgment was void. Despite his claims, Buchholdt did not provide any evidence to contradict Nelson's evidence of service or to show that Suz Miller was not authorized to receive service on his behalf. Additionally, Buchholdt had listed Nelson's lawsuit as a contingent liability when he filed for bankruptcy, indicating he had knowledge of the suit.Therefore, the court affirmed the denial of Buchholdt's motions to set aside the judgment and for reconsideration. The court did not find that the judgment was void due to a lack of personal jurisdiction resulting from improper service of process. View "Buchholdt v. Nelson" on Justia Law

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While representing a client, Jane Roe , Appellant attorney John Doe engaged in settlement negotiations with the University of Maryland Medical System (UMMS). The negotiations between Doe and UMMS proceeded poorly. Among other things, Doe also made any settlement between Roe and UMMS contingent on his personal receipt of an additional $25 million that would effectuate his retention by UMMS as a private consultant of sorts. A grand jury indicted Doe, charging him with attempted extortion in violation of 18 U.S.C. Sections 1951 and 1952. Shortly thereafter—at the government’s request—the grand jury issued multiple subpoenas duces tecum to the lawyers and firms that assisted in Doe’s representation of Roe—and in the formation of the alleged extortion scheme. Doe and Roe moved to quash the subpoenas. That court then granted in part a subsequent motion filed by the government to compel production. Doe and Roe now appealed asking the court to reverse the district court’s orders first denying their motions to quash and then compelling production.The Fourth Circuit dismissed the appeal as to Doe for lack of appellate jurisdiction and otherwise affirmed. The court held that it lacks jurisdiction to consider Doe’s arguments given the Supreme Court’s effective narrowing of the Perlman doctrine. The court otherwise affirmed discerning no reversible error and ordered the parties must proceed to comply with the disputed subpoenas duces tecum in accordance with the district court’s order compelling production and this opinion. View "In re: Grand Jury 2021 Subpoenas" on Justia Law

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Tod T. Tumey and Tumey, LLP (collectively, “Tumey”) commenced this action in 2021, alleging that Mycroft AI, Inc., engaged in harassment of Tumey, including through “online hacking, phishing, identity theft, and other cyberattacks.” In May 2021, Tumey contacted an M.L. to inquire about employing him as an expert witness in the case. Tumey emailed M.L. a copy of their Complaint against Mycroft, after which Tumey’s counsel and M.L. had a forty-to-sixty-minute conference call to discuss the nature of the case and potential expert work involved. Tumey never executed the engagement letter and did not retain M.L. Mycroft designated M.L. as their expert witness, and Tumey moved to disqualify the expert on grounds of a conflict of interest. The district court denied Tumey’s motion to disqualify M.L. Plaintiffs appealed the district court’s denial of their motion.   The Eighth Circuit affirmed. The court explained that in denying Plaintiff’s motion to disqualify the expert, the district court held that the facts “do not favor a finding that a confidential relationship existed” between Plaintiffs and the expert witness that would give rise to a conflict of interest. The court explained that the district court found that Tumey’s lack of concrete examples failed to show they shared confidential information with M.L. Similarly, the court found that Plaintiffs have failed to show the court that the district court clearly erred in finding that no conflict of interest existed. View "Tumey, LLP v. Mycroft AI, Inc." on Justia Law

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The Louisiana Supreme Court granted certiorari in this medical malpractice matter in order to consider whether the gross negligence standard of La.R.S. 29:771(B)(2)(c) was to be considered by a medical review panel when the medical treatment occurred during a declared state of public health emergency pursuant to La.R.S. 29:766(A). To this, the Court found the trial court did not err in declaring that La.R.S. 29:771(B)(2)(c) should not be considered or applied in medical review panel proceedings and, therefore, did not err in granting Plaintiff’s motion for summary judgment. Likewise, the court of appeal did not err in its affirmation. Thus, the Supreme Court affirmed. View "Sebble v. St. Luke's #2, LLC d/b/a St. Luke's Living Center, et al." on Justia Law

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Plaintiff and Defendant both members of the State Bar, represent opposing parties in a dissolution/annulment proceeding pending in Los Angeles Superior Court. Following an incident at Plaintiff’s office relating to the canceled deposition of Defendant’s client, Plaintiff obtained a three-year civil harassment restraining order pursuant to Code of Civil Procedure section 527.6 protecting her, as well as her paralegal and office receptionist, from further harassment by Defendant.   On appeal Defendant argued, in part, that all of the conduct upon which the trial court based its findings of harassment was constitutionally protected activity and there was insufficient evidence his actions, to the extent not constitutionally protected, were directed at Plaintiff, caused Plaintiff substantial emotional distress, or would cause a reasonable person substantial emotional distress as required to support issuance of the restraining order. Defendant also argued that the court erred in including in the order members of Plaintiff’s office staff as protected individuals.   The Second Appellate District reversed and directed the trial court to enter a new order denying Plaintiff’s request for a restraining order. The court explained that Defendant’s Emails regarding his client’s deposition constituted constitutionally protected activity. The court explained that because the emails were constitutionally protected, it was an error for the trial court to conclude they were properly considered part of a course of conduct of harassment. Further, the court found that the evidence of Defendant’s nonprotected conduct did not support the court’s findings of a willful or knowing course of conduct that would cause a reasonable person and did cause Plaintiff substantial emotional distress. View "Hansen v. Volkov" on Justia Law

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At issue before the Colorado Supreme Court in this matter was a trial court’s order denying immunity to Defendant New Century Hospice, Inc. and its subsidiaries, Defendants Legacy Hospice, LLC, d/b/a New Century Hospice of Denver, LLC, and Legacy Hospice of Colorado Springs, LLC (collectively, “New Century”). New Century argued it was entitled to immunity under four different statutes. Tana Edwards filed suit against New Century (her former employer) and Kathleen Johnson, the Director of Operations for New Century Castle Rock (collectively, “Defendants”). As part of her employment with New Century, Edwards provided in-home care to an elderly patient. In December 2019, Johnson began to suspect that Edwards was diverting pain medications from the patient. Defendants reported the suspected drug diversion to the Castle Rock Police Department and the Colorado Department of Public Health and Environment (“CDPHE”). Defendants also lodged a complaint against Edwards’s nursing license with the Colorado Board of Nursing (“the Board”). After investigations, no criminal charges were filed and no formal disciplinary actions were taken against Edwards. Edwards subsequently brought this action against Defendants, alleging claims for negligent supervision and negligent hiring against New Century, as well as claims for defamation and intentional infliction of emotional distress against New Century and Johnson. Defendants moved for summary judgment. The trial court granted the motion as to Edwards’s claims for negligent hiring, defamation, and intentional infliction of emotional distress, finding that the claims were either time-barred or could not be proven. Three of the statutes New Century cited for its immunity claim, 12-20-402(1), C.R.S. (2022) (“the Professions Act”), 12-255-123(2), C.R.S. (2022) (“the Nurse Practice Act”), and 18-6.5-108(3), C.R.S. (2022) (“the Mandatory Reporter statute”), only authorized immunity for a “person.” Relying on the plain meaning of “person,” the Supreme Court held that New Century was not entitled to immunity under these three statutes because it was a corporation, not a person. The fourth statute, 18-8-115, C.R.S. (2022) (“the Duty to Report statute”), explicitly entitled corporations to immunity, but only if certain conditions were met. Applying the plain language of the statute, the Supreme Court held that New Century was not entitled to summary judgment on the issue of immunity under this statute because it did not carry its burden of demonstrating that all such conditions were met. View "In re Edwards v. New Century Hospice" on Justia Law

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Holly Rich brought a legal malpractice action against her attorneys, Hepworth Holzer, LLP, and E. Craig Daue and Daue Buxbaum, PLLC (“Daue Buxbaum”) (collectively, “Respondents”), regarding their legal representation of Rich in an underlying medical malpractice action against Eastern Idaho Regional Medical Center (“EIRMC”), Dr. John Lassetter (a cardiologist), and Dr. Charles Phillips (an intensivist) (collectively, “EIRMC providers”). In that action, Rich's claims against the EIRMC providers failed because they were filed after the statute of limitations expired. Rich alleged in this action that those claims were not filed on time because of Respondents’ legal malpractice. Both sides filed substantive motions for summary judgment and the district court found that Rich could not prevail because she had “not disclosed any expert [medical] testimony which complies with the requirements of Idaho law for admissibility.” The district court concluded that, lacking evidence to “set out a prima facie case of medical malpractice,” in the underlying case, Rich’s claim against Respondents for legal malpractice failed. Rich appealed. The Idaho Supreme Court found no reversible error and affirmed. View "Rich v. Hepworth Holzer" on Justia Law

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Appellant, an attorney, represented debtor in proceedings before the United States Bankruptcy Court. After Appellant failed to comply with a series of discovery orders, the bankruptcy court imposed sanctions of $55,000 for 55 days of non-compliance and $36,600 in attorneys' fees. The orders were affirmed by the district court. Appellant appealed, arguing that, first, the bankruptcy court lacked inherent authority to issue civil contempt sanctions, and second, as a matter of due process, he was not provided with sufficient notice of the basis for the sanctions imposed against him.   The Second Circuit affirmed. The court concluded that the civil contempt sanctions imposed against Appellant were within the scope of the bankruptcy court's discretion and that he had ample notice of the basis and reasons for the imposition of sanctions. The court explained that it appears that Appellant could not have been sanctioned under any express authority; the bankruptcy court was right to consider its inherent contempt authority. Nor was the bankruptcy court's exercise of its inherent contempt authority contrary to any provision of the Bankruptcy Code, including Section 105(a). Further, the court reasoned that the bankruptcy court found all the necessary elements -- that is, a finding of bad faith and satisfaction of the King factors -- to order contempt sanctions in the circumstances here, where Appellant was acting as an advocate. View "In re: Larisa Ivanovna Markus" on Justia Law

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Appellant Attorney Kezhaya represented The Satanic Temple, Inc., in its lawsuits against the City of Belle Plaine, Minnesota. The Temple sued the City, claiming that the City opened a limited public forum for a Christian monument, but closed the forum to exclude a Satanic monument. The City sought $33,886.80 in attorney’s fees incurred by responding to the complaint in the second lawsuit and preparing the motion for sanctions. The court determined that the rates charged by the City’s counsel were reasonable but observed that a portion of the work was duplicative of the first lawsuit and that the issues unique to the second lawsuit were not complex, novel, or difficult. The court thus reduced the requested amount by fifty percent and ordered the Temple’s counsel to pay the City $16,943.40 under Rule 11(c). Kezhaya appealed the sanctions order. He argues that the district court abused its discretion by (i) imposing sanctions, (ii) failing to consider non-monetary sanctions, and (iii) granting an arbitrary amount of sanctions.   The Eighth Circuit affirmed. The court explained that under the circumstances, it disagreed with Kezhaya’s contention about the righteousness of a second lawsuit. For the claims dismissed “without prejudice” in the first lawsuit, Kezhaya and the Temple made a strategic choice to seek leave to amend the complaint to correct the deficiencies identified in the dismissal order. Further, the court found that even if the City’s insurance carrier ultimately paid the fees, the fees were “incurred” for the motion and could be awarded under Rule 11(c)(2). View "Matthew Kezhaya v. City of Belle Plaine" on Justia Law

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The Center for Scientific Integrity (CSI) was an organization that reported on academic retractions and accountability. CSI wrote an article about plaintiff-respondent Constance Iloh, a professor at the University of California, Irvine (UCI), after several academic journals retracted articles Iloh had written due to concerns about possible plagiarism or inaccurate citation references. In a follow-up to that article, CSI sent UCI a records request under the California Public Records Act (CPRA) requesting Iloh’s postpublication communications with the journals and UCI. Iloh petitioned for a writ of mandate, declaratory relief, and injunctive relief against UCI to prevent disclosure of her communications, and later added CSI as a real party in interest. She then filed a motion for preliminary injunction to prevent disclosure. Meanwhile, CSI filed a motion to strike Iloh’s petition under the anti-SLAPP (strategic lawsuit against public participation) statute. The Court of Appeal’s first opinion in this case concerned Iloh’s motion for preliminary injunction. The trial court denied that motion on the grounds that Iloh had not established a likelihood of prevailing on the merits, and the Court affirmed that order. In this case, the Court considered CSI’s anti-SLAPP motion. The trial court denied the motion, finding that although protected activity may have led to the petition, it was not the “basis” for the petition. To this, the Court disagreed: in issuing the CPRA request, CSI was engaging in newsgathering so it could report on matters of public interest, such as how a public university funded largely by taxpayer dollars resolved quality or integrity problems in its professors’ publications. CSI was therefore engaged in protected activity when it issued the CPRA request. Iloh filed her petition for mandamus relief to prevent UCI from complying with the CPRA request. “This is the type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if Iloh cannot demonstrate a probability of prevailing on her petition.” The Court of Appeal found the trial court had not performed the second prong of the anti-SLAPP analysis. Therefore, the Court reversed the order denying CSI’s anti-SLAPP motion and remanded this case with directions that the trial court consider prong two of the anti-SLAPP statute. View "Iloh v. Regents of the University of California" on Justia Law