Justia Professional Malpractice & Ethics Opinion Summaries

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

The United States appealed an award of attorney's fees and costs under the Hyde Amendment, Pub. L. No. 105-119, section 617, 111 Stat. 2440, 2519, and two attorneys, Sean Cronin and Andrea Hoffman, appeal public reprimands entered against them based on their work as Assistant United States Attorneys in an underlying criminal action marked by hard adversarial tactics. The court held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and the district court violated the constitutional right to due process of the two lead prosecutors, when it denied them notice of any charges of misconduct and an opportunity to be heard. Therefore, the court vacated the award of attorney's fees and costs against the United States and the public reprimand of Cronin and Hoffman, but the court denied the request of Cronin and Hoffman that the court reassign the case to a different district judge at this stage. View "United States v. Shaygan" on Justia Law

Plaintiff was a secretary of G. Thomas Porteous, Jr. during his service as a district judge until Porteous was impeached and the Judicial Council of the Fifth Circuit suspended Porteous's authority to employ staff, which resulted in plaintiff's termination. Plaintiff sued the Judicial Council and fifteen of its members seeking declaratory relief, reinstatement to her position, monetary relief, and attorney's fees and costs. Plaintiff subsequently appealed the district court's order insofar as it dismissed her claims against the members of the Judicial Council. The court held that plaintiff lacked prudential standing to bring her constitutional challenge to the Judicial Council's action. The court rejected plaintiff's claim that the ultra vires exception applied to sovereign immunity where her claims for injunctive relief were moot in light of Porteous's removal from office; claims for back pay and retirement credits were barred by sovereign immunity; and plaintiff lacked the necessary injury-in-fact to pursue declaratory relief. The court also held that even if plaintiff had standing to seek declaratory relief, she had not pleaded a sufficient claim of ultra vires action by the Judicial Council to overcome the jurisdictional bar of sovereign immunity. Accordingly, the judgment was affirmed. View "Danos v. Jones, et al" on Justia Law

This action arose out of the sale of Giant Cement Holding, Inc. (Giant) by defendant Cementos Portland Valderrivas (CPV) to defendant Corporacion Uniland S.A. Sagarra Inversiones, S.L. (Sagarra) challenged the transaction on the basis of CPV's self-dealing because of its position as the majority shareholder on both sides of the transaction. Sagarra purported to bring this action individually and derivatively on behalf of nominal defendant Uniland Acquisition Corp. (Uniland Delaware). The court held that to the extent the Complaint asserted a multiple derivative action on behalf of Uniland Delaware, it must be dismissed because Sagarra did not have standing to raise those claims based on the court's review of Spanish law. The court held that for the same reasons, Counts I and II, which assert multiple derivative claims on behalf of Uniland Delaware, were dismissed. The court's determination with respect to Sagarra's lack of standing as to Counts I and II was equally applicable to Count III. The court finally held that because Count IV raised fiduciary duty claims under Spanish law, the better course of action was for the court to exercise its discretion and dismiss Count IV. Therefore, defendants' motion to dismiss the Complaint was granted and an implementing order would be entered.