Justia Professional Malpractice & Ethics Opinion Summaries

In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice. View "New Jersey v. Gaitan" on Justia Law

In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice. View "New Jersey v. Goulbourne" on Justia Law

This appeal concerned a First Amendment challenge to a New York rule requiring attorneys to identify themselves as certified specialists to make a prescribed disclosure statement. At issue was whether Rule 7.4 of the New York Rules of Professional Conduct, N.Y. Comp. Codes R. & Regs. tit. 22 section 1200.53(c)(1), which required a prescribed disclaimer statement to be made by attorneys who stated that they were certified as a specialist in a particular area of law either violated plaintiff's freedom of speech or was unconstitutionally vague. Because enforcement of two components of the required disclaimer statement would violate the First Amendment and because the absence of standards guiding administrators of Rule 7.4 rendered it unconstitutionally vague as applied to plaintiff, the court reversed with directions to enter judgment for plaintiff. View "Hayes v. State of New York Attorney Grievance Comm." on Justia Law

The central issue on appeal in this case arose from an order that denied a pretrial special motion to dismiss under Nevada's anti-SLAPP statute (Nev. Rev. Stat. 41.635-670), and whether that order was appealable under the collateral order doctrine as established by Supreme Court precedent. In 2009, Defendant-Appellant attorney Scott Ferrell sent demand letters to Plaintiffs-Appellees Metabolic Research, Inc. (Metabolic), at its address in Las Vegas, Nevada, and to General Nutrition Centers, Inc. (GNC), at its address in Pittsburgh, Pennsylvania. The demand letters purported to notify the recipients that they had violated California law by falsely advertising the properties and potential benefits of "Stemulite," which they marketed as a natural fitness supplement. Defendant represented that he was acting on behalf of three individuals and a class of similarly situated people, all of whom he alleged purchased Stemulite in California, in reliance on the supposed false advertising, and had not received the purported benefits. In his letters, Defendant set out his allegations, and concluded them with offers to compromise and allow Plaintiffs time to agree to an injunction. If Plaintiffs did not accept his offer, Defendant stated he would file suit. Metabolic filed suit in Nevada against Defendant and his putative class action plaintiffs charging them with extortion, racketeering and conspiracy. Defendant removed the case to the federal district court in Nevada, then moved to dismiss Metabolic's case based on Nevada's anti-SLAPP statute. In its order dismissing Ferrell’s motion, the district court found that Ferrell had not established that the demand letter to Metabolic constituted a good-faith communication in furtherance of the right to petition because it concluded that Nevada’s anti-SLAPP legislation only protected communications made directly to a governmental agency and did not protect a demand letter sent to a potential defendant in litigation. Finding that the Nevada legislature did not intend for its anti-SLAPP law to function as an immunity from suit, Defendant's motion was not immediately appealable. The Ninth Circuit held that the district court's denial of Defendant's special motion was not made in error. View "Metabolic Research, Inc. v. Ferrell" on Justia Law

Petitioners, citizens of Mexico, entered the U.S. unlawfully in 1993 and 1998, respectively. Since 2000, husband has been seeking employment-based permanent residency. An individual who would not ordinarily qualify for lawful permanent residency because he entered without inspection, may apply as the beneficiary of a labor certification application or a visa petition filed on or before April 30, 2001, 8 U.S.C. 1255(i). According to the court, petitioners' former attorney provided incompetent, and at times ethically questionable, representation throughout the visa petition process, missing filing deadlines and sending associates to hearings without adequate information about the case, so that an IJ granted voluntary departure and the BIA affirmed denial of a motion to reopen. The Third Circuit denied review. The Due Process Clause does not guarantee an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. By the time removal proceedings began, petitioners had accrued more than one year of unlawful presence and would have been ordered removed regardless of counsel's actions.View "Contreras v. Attorney Gen. of U.S." on Justia Law

Plaintiff sued defendants under Title VII, alleging claims of racial harassment and constructive discharge. Plaintiff subsequently appealed the district court's dismissal of his complaint based on a finding that plaintiff committed perjury and the district court's grant of defendants' motion for sanctions. Plaintiff argued that a less severe sanction was more appropriate and that the district court should have held an evidentiary hearing to allow plaintiff to explain his conflicting testimony. Plaintiff's counsel, who was separately sanctioned, also appealed the denial of his motion for recusal of the magistrate judge. The court held that the district court did not abuse its discretion in deciding to dismiss plaintiff's complaint with prejudice where plaintiff plainly committed perjury; plaintiff's argument that the district court failed to hold a hearing was meritless where he made no effort to explain why he and his attorney failed to show at the hearing held by the district court to address objections to the magistrate judge's report; and the district court did not abuse its discretion in denying counsel's motion for recusal where a reasonable person would not question the magistrate judge's impartiality in this case. Accordingly, the court affirmed the judgment. View "Brown v. Oil States Skagit Smatco, et al." on Justia Law

Defendants, moved the district court to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Mathew Trainor, a Fulton County Assistant District Attorney, was absolutely immune from plaintiff's claims. The court affirmed the district court to the extent it found Trainor absolutely immune from plaintiff's claim that Trainor violated her constitutional rights by making false statements in support of a material witness order. The court vacated and remanded the rest of the order and judgment because absolute immunity did not immunize prosecutors from liability for making defamatory statements to the press, accessing a person's voicemail without consent, or persuading a party to a conversation to record its contents; and, the district court should consider in the first instance whether Trainor was absolutely immune for continuing to withhold/preserve evidence - plaintiff's cell phone. View "Flagler v. Trainor" on Justia Law

Plaintiff-Appellant Susan Rose, a Utah lawyer, initiated the underlying federal lawsuit to challenge the constitutionality of state disciplinary proceedings brought against her by the Utah bar. She also sought a preliminary injunction to enjoin those proceedings. The district court denied the injunction, and while this appeal from the injunction decision was pending, it dismissed the underlying action. The Bar moved to dismiss the appeal, claiming it was mooted by the dismissal of the underlying action. Upon review, the Tenth Circuit agreed this appeal was moot, and granted the Bar's motion to dismiss. View "Rose v. Utah State Bar" on Justia Law

Appellants appealed the dismissal of their class action complaint against Nextel, the law firm of Leeds, Morelli & Brown, P.C. (LMB), and seven of LMB's lawyers (also LMB). Appellants were former clients of LMB who retained the firm to bring discrimination claims against Nextel. The complaint asserted that, inter alia, LMB breached its fiduciary duty of loyalty to appellants and the class by entering into an agreement with Nextel in which Nextel agreed to pay: (i) $2 million to LMB to persuade en masse its approximately 587 clients to, inter alia, abandon ongoing legal and administrative proceedings against Nextel, waive their rights to a jury trial and punitive damages, and accept an expedited mediation/arbitration procedure; (ii) another $3.5 million to LMB on a sliding scale as the clients' claims were resolved through that procedure; and (iii) another $2 million to LMB to work directly for Nextel as a consultant for two years beginning when the clients' claims had been resolved. The court held that appellants have alleged facts sufficient to state a claim against LMB for, inter alia, breach of fiduciary duty and against Nextel for aiding and abetting breach of fiduciary duty. Therefore, the court vacated and remanded for further proceedings. View "Johnson v. Nextel Communications, Inc." on Justia Law

Plaintiff Keith Drollinger, a convicted felon, brought suit against the lawyers who represented him in his attempt to obtain post-conviction relief, but shortly before the matter was scheduled for trial, withdrew. Defendants Gordon Mallon, John Lamborn, Robert Raschio and their firm, Mallon Lamborn & Raschio, PC, moved to dismiss the malpractice action for lack of subject matter jurisdiction and for failure to state a claim. They argued that, under the Supreme Court’s decision in "Stevens v. Bispham," (316 Or 221)(1993)), the action was barred because plaintiff had not been exonerated of the underlying offenses. The circuit court agreed with Defendants, granted their motion, and dismissed the complaint. On appeal, the Court of Appeals affirmed without opinion. Upon review, the Supreme Court concluded that "Stevens," a case addressing the statute of limitations in a malpractice action brought by a former criminal defendant against trial counsel in the underlying case, did not preclude this convicted Plaintiff from pursuing a malpractice action against post-conviction counsel. Because the circuit court treated actual exoneration as a prerequisite for bringing the action, the Court reversed and remanded the case for further proceedings. View "Drollinger v. Mallon" on Justia Law