Justia Professional Malpractice & Ethics Opinion Summaries

In a judicial disciplinary proceeding, the Colorado Supreme Court considered the exceptions of now-former Colorado Court of Appeals Judge Laurie Booras to the Colorado Commission on Judicial Discipline’s (the “Commission’s”) recommendation that Judge Booras be removed from office and that she be ordered to pay the costs incurred by the Commission in this matter. The Commission’s recommendation was based on the factual findings and conclusions of law set forth in the December 12, 2018 Report of the Special Masters in this case. That report concluded that Judge Booras had violated Canon 1, Rule 1.2, Canon 3, Rule 3.1, and Canon 3, Rule 3.5 of the Colorado Code of Judicial Conduct by (1) disclosing confidential information belonging to the court of appeals (namely, the vote of a court of appeals division on a case prior to the issuance of the decision in that case) to an intimate, non-spousal partner and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a court of appeals colleague. Judge Booras filed exceptions to the Commission’s recommendation, contending that her communications with her then-intimate partner were protected by the First Amendment and that the recommendation that she be removed from office was too severe under the circumstances of this case. In addition, by letter dated January 2, 2019, Judge Booras advised the Chief Justice that she was resigning her position as a Colorado Court of Appeals Judge, effective as of the close of business on January 31, 2019, although no party contended Judge Booras’s resignation rendered this matter moot. Having now considered the record and the briefs of the parties, the Supreme Court concluded the Commission properly found Judge Booras’s communications with her then-intimate partner were not protected by the First Amendment. Furthermore, given Judge Booras’ resignation, which she tendered and which became effective after the Commission made its recommendation, the Court did not decide whether Judge Booras’s removal from office was an appropriate sanction. Rather, the Court concluded the appropriate sanction in this case was acceptance of Judge Booras’s resignation, the imposition of a public censure, and an order requiring Judge Booras to pay the Commission’s costs in this matter. View "In the Matter of Laurie A. Booras" on Justia Law

In 2009, Della Gallegos had to undergo three cranial surgeries after her radiologist, Dr. Steven Hughes, failed to detect an obvious brain tumor on an MRI scan three years earlier. Had Dr. Hughes discovered the tumor in 2006, Gallegos could have treated it with cheaper, and less invasive, radiosurgery. The highly invasive cranial surgeries damaged Gallegos’s vision, hearing, and memory. Gallegos retained attorney Patric LeHouillier to sue Dr. Hughes for medical malpractice. But LeHouillier later decided not to proceed with the suit, concluding it did not make economic sense. He and Gallegos disagreed over whether he actually informed her of this decision, and the statute of limitations lapsed on the claims Gallegos could have brought against Dr. Hughes. Gallegos thereafter brought this attorney malpractice case against LeHouillier and his firm, claiming that LeHouillier’s negligence prevented her from successfully suing Dr. Hughes for medical malpractice. The question before the Colorado Supreme Court involved who bore the burden to prove that any judgment that could have been obtained against Dr. Hughes would have been collectible. The Supreme Court concluded that because the collectibility of the underlying judgment was essential to the causation and damages elements of a client’s negligence claim against an attorney, it held the client-plaintiff bore the burden of proving that the lost judgment in the underlying case was collectible. Here, the record reflected Gallegos failed to present sufficient evidence of collectibility. However, given the absence of a clear statement from the Supreme Court regarding plaintiff's burden to prove collectibility at the time of trial, and because the issue was not raised in this case until after Gallegos had presented her case-in-chief, the Court reversed the court of appeals and remanded for a new trial. View "LeHouillier v. Gallegos" on Justia Law

In a construction-defect matter filed by a homeowners’ association (HOA) against several developers, an attorney for the HOA previously represented one of the developers. The developers moved to disqualify that attorney under Rules 1.9 and 1.10 of the Colorado Rules of Professional Conduct. The trial court denied the motion, without what the Colorado Supreme Court described as “meaningfully analyzing for purposes” of Rule 1.9 whether this case was “substantially related” to the prior matters in which the attorney represented the developer. Instead, the Court found the trial court relied on issue preclusion, and found that in this situation, the attorney was not disqualified to represent the developer. The Supreme Court concluded the trial court erred by not analyzing the facts of this case under Rule 1.9, and therefore vacated the denial of the developers’ motion, and remanded for further proceedings. View "In re Villas at Highland Park Homeowners Assoc. v. Villas at Highland Park, LLC" on Justia Law

After losing on her Colorado Fair Debt Collection Practices Act claim at the county court, Elizabeth Flood's trial counsel, Gary Merenstein, paid the fees of several appellate attorneys who represented Flood in an appeal to the district court and later to the Supreme Court because they were not willing to work on a contingency basis. Flood ultimately prevailed in her appeal, and the Supreme Court awarded attorneys' fees. On remand to the county court to determine Flood's entitlement to and the amount of the attorneys' fees, the opposing party, debt collector Mercantile Adjustment Bureau(MAB), argued that Flood was not entitled to receive attorneys' fees for her appellate counsel's work. MAB argued that the arrangement between Merenstein and Flood, wherein he agreed to pay her appellate attorneys' fees and expected to be reimbursed for these fees from any court award of attorneys' fees received by Flood, constituted unethical financial assistance of a client in violation of Rule 1.8(e) of the Colorado Rules of Professional Conduct. The county court rejected MAB's argument and awarded Flood the requested attorneys' fees. MAB appealed to the district court, which affirmed the county court. Upon review, the Supreme Court held that Merenstein did not violate Rule 1.8(e) by paying the fees of Flood's appellate counsel and therefore affirmed the district court's decision in part. However, the Court concluded that the district court erred in applying the Colorado Appellate Rules, which require an appellee to make her request for attorneys' fees in her answer brief, to an appeal to the district court from the county court. The Court reversed that part of the district court's ruling applying the Colorado Appellate Rules to deny Flood's request for attorneys' fees incurred in the current appeal. The case was remanded to the district court to return it to the county court for proceedings to determine whether Flood was entitled to appellate fees as the prevailing party in this appeal and, if so, the amount of Flood's reasonable attorneys' fees and costs incurred in connection with this appeal—including the proceedings before the Supreme Court. View "Mercantile Adjustment Bureau v. Flood" on Justia Law

Petitioner Amanda Vinton, Esq. sought relief from orders of the probate court that permitted Respondent Sharon Virzi to amend her challenge to a trust administration by adding a claim of fraud against Vinton, the attorney for the trustee. Over Petitioner's objection, the probate court summarily granted Respondent's motion to amend, forcing Petitioner to withdraw as counsel for the trustee. The probate court subsequently summarily denied two motions by Petitioner to dismiss the claim against her and ordered her to pay Respondent's attorney fees for having to defend against a substantially frivolous and groundless motion. The Supreme Court issued a rule to show cause. Because Respondent's fraud claim was not plead with sufficient particularity to withstand a motion to dismiss, it was futile, and the probate court abused its discretion in permitting the joinder of her opponent's attorney. The Supreme Court found that whether or not Petitioner's motion to dismiss for lack of subject matter jurisdiction over the separate fraud claim was meritorious, the record was inadequate to support an award of attorney fees. The rule was therefore made absolute, and the matter was remanded to the probate court with directions to dismiss Respondent's claim of fraud against Petitioner and to vacate its award of attorney fees. View "Vinton v. Virzi" on Justia Law

A discovery dispute arose out of claims for legal malpractice and breach of fiduciary duty brought by Moreland/Manoogian, LLC and Tamsen Investments, LLC (collectively "M/M"). Richard Judd, Stephen Waters and their firm Robinson Waters & O'Dorisio, PC (RWO) represented M/M in a real estate development deal. Cedar Street Venture, LLC and M/M sought to solidify their partnership, but in the final phases of the deal, Cedar Street's attorney withdrew. RWO continued to represent M/M in the transaction but at times also advised and acted on behalf of Cedar Street. Because of these actions, Cedar Street viewed RWO as its attorney. Eventually the relationship between M/M and Cedar Street soured, and the parties went to arbitration to settle their differences. The basis of M/M and Cedar Street's complaints pertained to RWO's fees. During discovery, M/M sought RWO's financial records. RWO refused to turn them over. With minimal explanation, the trial court found that these documents were directly relevant to the case. In its holding, the Supreme Court took the opportunity to set the framework that trial courts should use when deciding on discovery requests that implicate the right to privacy: (1) the party requesting the information must prove the information is relevant to case; (2) the party opposing the request must show that the materials are confidential and will not otherwise be disclosed; (3) if the court determines there is a legitimate expectation of privacy in the materials, the requesting party must prove disclosure serves a compelling interest; and (4) if successful, the requesting party must show that the information is not available through other sources.

The Supreme Court reviewed the appellate courtâs decision against Plaintiffs Jack and Danette Steele. In their claim, Plaintiffs alleged that attorney Katherine Allen gave them incorrect information about a statute of limitations, which led to missing a filing deadline in a negligence suit. The trial court dismissed both their claims of negligent misrepresentation and professional negligence. Plaintiffs only appealed the dismissal of their negligent misrepresentation claim. The appellate court held that Plaintiffs had a claim against the attorney. However, the Supreme Court disagreed, finding that Plaintiffsâ evidence was not sufficient to support their claim. The Court reversed the decision of the appellate court and remanded the case for further proceedings.