Justia Professional Malpractice & Ethics Opinion Summaries

Burkhart, the CEO of ASC, a private company that operates Indiana nursing homes and long-term care facilities, orchestrated an extensive conspiracy exploiting the company’s operations and business relationships for personal gain. Most of the funds involved in the scheme came from Medicare and Medicaid. After other defendants pled guilty and Burkhart’s brother agreed to testify against him, Burkhart pled guilty to conspiracy to commit mail, wire, and healthcare fraud (18 U.S.C. 1349); conspiracy to violate the AntiKickback Statute (18 U.S.C. 371); and money laundering (18 U.S.C. 1956(a)(1)(B)(i)). With a Guidelines range of 121-151 months, Burkhart was sentenced to 114 months’ imprisonment.Burkhart later filed a habeas action, contending that his defense counsel, Barnes & Thornburg provided constitutionally deficient representation because the firm also represented Health and Hospital Corporation of Marion County, a victim of the fraudulent scheme. The Seventh Circuit affirmed the denial of relief. While the firm labored under an actual conflict of interest, that conflict did not adversely affect Burkhart’s representation. Nothing in the record shows that the firm improperly shaded its advice to induce Burkhart to plead guilty; the advice reflected a reasonable response to the “dire circumstances” facing Burkhart. The evidence of Burkhart’s guilt was overwhelming. View "Burkhart v. United States" on Justia Law

The question this case presented for the Court of Appeal's review centered on when a lawyer's settlement demand crosses the line and becomes professional misconduct. Falcon Brands, Inc. and Coastal Harvest II, LLC (collectively Falcon) appealed an order granting respondent’s special motion to strike both causes of action in Falcon’s cross-complaint pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP law). The cross-complaint alleges extortion and intentional interference with a contract against attorney Amy Mousavi and her law firm, Mousavi & Lee, LLP (collectively Mousavi). Falcon argued Mousavi’s e-mail settlement demands, which were the focus of Falcon’s cross-complaint, were not entitled to protection under the anti-SLAPP law because they constituted illegal attempts to force Falcon into settling the underlying matter. The trial court rejected this argument and granted Mousavi’s anti-SLAPP motion. The Court of Appeal reversed as to the first cause of action for extortion because it concluded Mousavi’s e-mail settlement demands, when considered in context, were not protected speech in light of the Supreme Court’s ruling in Flatley v. Mauro, 39 Cal.4th 299 (2006). "Mousavi’s escalating series of threats ultimately transformed what had been legitimate demands into something else: extortion." The Court affirmed as to the second cause of action, intentional interference with a contract. That cause of action arose from Mousavi’s actual revelation of damaging information about Falcon to Falcon’s merger partner. Falcon did not contend the revelations were illegal as a matter of law. The revelations were made in furtherance of Mousavi’s contemplated litigation. The Court found the trial court correctly concluded the revelations were protected by the litigation privilege. Consequently, they were also protected by the anti-SLAPP statute. View "Falcon Brands, Inc. v. Mousavi & Lee, LLP" on Justia Law

Zena Collins Stephens appealed both the court of appeals’ denial of a pretrial writ of habeas corpus and its reversal of the district court’s decision to quash Count I of the indictment. Stephens was elected to the position of sheriff of Jefferson County, Texas in 2016. While investigating someone else, the FBI uncovered information regarding potential campaign-finance violations concerning Stephens. The FBI then turned this information over to the Texas Rangers. The Rangers’ investigation concluded Stephens received individual cash campaign contributions in excess of $100. A grand jury indicted Stephens on three counts: Count I: tampering with a government record in violation of Texas Penal Code section 37.10 “by reporting a $5,000.00 individual cash contribution in the political contributions of $50.00 or less section of said Report;” iIn Counts II and III, unlawfully making or accepting a contribution in violation of Texas Election Code section 253.033(a) by accepting cash contributions in excess of $100 from two different individuals. On appeal to the Texas Court of Criminal Appeals, Stephens asked: could the Texas Legislature delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts? To this, the Court answered "no:" because Texas Election Code section 273.021 delegated to the Attorney General a power more properly assigned to the judicial department, the statute was unconstitutional. Therefore, the Court reversed the decision of the court of appeals and remanded the case to the trial court to dismiss the indictment. View "Texas v. Stephens" on Justia Law

Defendant Bennie Anderson was employed by Jersey City in the Tax Assessor’s office. His position gave him the opportunity to alter property tax descriptions without the property owner filing a formal application with the Zoning Board. In December 2012, defendant accepted a $300 bribe in exchange for altering the tax description of a property from a two-unit dwelling to a three-unit dwelling. Defendant retired from his position in March 2017 and was granted an early service retirement pension. In November 2017, defendant pled guilty in federal court to violating 18 U.S.C. 1951(a), interference with commerce by extortion under color of official right. Defendant was sentenced to two years of probation and ordered to pay a fine. Based on defendant’s conviction, the Employees’ Retirement System of Jersey City reduced his pension. The State filed an action in state court to compel the total forfeiture of defendant’s pension pursuant to N.J.S.A. 43:1-3.1. The trial court entered summary judgment for the State, finding that the forfeiture of defendant’s pension did not implicate the constitutional prohibitions against excessive fines because the forfeiture of pension benefits did not constitute a fine. The Appellate Division affirmed the grant of summary judgment to the State, but on different grounds, concluding the forfeiture of defendant’s pension was a fine, but that requiring defendant to forfeit his pension was not excessive. The New Jersey Supreme Court concluded forfeiture of defendant’s pension under N.J.S.A. 43:1-3.1 did not constitute a fine for purposes of an excessive-fine analysis under the Federal or New Jersey State Constitutions. Because the forfeiture was not a fine, the Court did not reach the constitutional analysis for excessiveness. View "New Jersey v. Anderson" on Justia Law

Appellant William Lewis, the former Sheriff of Greenville County, asked the South Carolina Supreme Court to hold the 1829 statute under which he was convicted for misconduct in office relating to a sexual affair with an employee, void for vagueness. Specifically, he argued Section 8-1-80 of the South Carolina Code (2019), was unconstitutional because it proscribed "official misconduct, corruption, fraud, or oppression" without defining those terms, and he claimed he was entitled to a directed verdict. Lewis was elected sheriff of Greenville County in the 2016 general election. Lewis hired Savannah Nabors, aged twenty-two, with whom he had previously worked at a local law firm, to be his administrative coordinator. Nabors had no law enforcement experience. She was paid a salary and given numerous benefits, including a new 2017 Ford Explorer equipped with a special "police package," an assigned parking place close to Lewis, a cell phone, an iPad, and a computer. Lewis first had sex with Nabors in 2017 when she accompanied him on a business trip out of state. Nabors testified that Lewis acted appropriately at times but on other occasions, he continued to pursue a relationship with her. Nabors indicated she preferred her relationship with Lewis to be nonsexual; Lewis responded that was "fine" but there would have to be changes, including her not accompanying him to meetings and other places for work. Nabors tendered her resignation in April 2017. By August 2017, Nabors detailed the out-of-state trip in a personal blog and accused Lewis (not specifically by name), of improprieties. Thereafter, she filed a civil lawsuit. Lewis held a press conference in October 2017 and admitted to the affair, but denied allegations of assault, rape, or stalking, maintaining the encounter was consensual. Following a SLED investigation, Lewis was indicted in April 2018 for common law misconduct in office and obstruction of justice. The South Carolina Supreme Court found the applicable statute constitutional, and that the trial court did not err in refusing to quash the indictment against Lewis. View "South Carolina v. Lewis" on Justia Law

The Supreme Judicial Court affirmed the judgment of the superior court affirming the Department of Public Safety's denial of Appellant's application for a professional investigator license, holding that Appellant's First Amendment rights were not violated by the application of statutory competency standards to his conduct on social media.The Department denied Appellant's application based on comments and posts that he had made on social media using an account bearing the name of his out-of-state private investigation business concerning a police lieutenant. The Supreme Judicial Court affirmed the circuit court's affirmation of the Department's decision, holding (1) intermediate scrutiny applies to the Department's application of the licensing statutes to Appellant's application; (2) the Department did not err in its findings; and (3) the Department's application of the licensing standards to Appellant did not violate the First Amendment. View "Gray v. Department of Public Safety" on Justia Law

Dat was born in a Kenyan refugee camp in 1993. Admitted to the U.S. around 1994, he became a lawful permanent resident. Dat pled guilty to robbery, 18 U.S.C. 1951, and was sentenced to 78 months' imprisonment. Dat’s robbery conviction is a deportable offense, 8 U.S.C. 1227(a)(2)(A)(iii). Dat moved to vacate his guilty plea, claiming that his attorney, Allen, assured him that his immigration status would not be affected by his plea. Allen testified that she repeatedly told Dat the charges were “deportable offenses,” that she never told him, his mother, or his fiancée that he would not be deported. that she encouraged Dat to hire an immigration attorney, and that they reviewed the Plea Petition, which says that non-citizens would be permanently removed from the U.S. if found guilty of most felony offenses. The Plea Agreement refers to immigration consequences. Dat and Allen also reviewed the PSR, which stated that immigration proceedings would commence after his release from custody.The Eighth Circuit affirmed the denial of relief, finding that Dat was not denied effective assistance of counsel. It was objectively reasonable for Allen to tell Dat that he “could” face immigration ramifications that “could” result in deportation. An alien with a deportable conviction may still seek “relief from removal. These “immigration law complexities” should caution any defense attorney not to advise a defendant considering a guilty plea that the result of a post-conviction, contested removal proceeding is certain. View "Dat v. United States" on Justia Law

Former sheriff's deputies Henry Lee Copeland, Rhett Scott, and Michael Howell were indicted by grand jury for the felony murder (and other offenses) of Eurie Lee Martin. Each defendant sought immunity from prosecution under OCGA 16-3-24.2, claiming that his actions resulting in Martin’s death were in defense of himself or others. Following a hearing, the trial court issued an order granting immunity to Deputies Copeland, Scott, and Howell, and the State appealed. The Georgia Supreme Court determined that, in granting immunity, the trial court made findings of material fact that were inconsistent with its legal conclusions regarding the deputies’ encounter with Martin, conflated principles regarding the reasonable use of force by law enforcement with self-defense and immunity, made unclear findings of material fact with respect to whether any or all of the deputies used force intended or likely to cause death, and did not address the facts pertinent to each of the three deputies individually. For these reasons, the Supreme Court vacated the trial court’s ruling and remanded the cases for further consideration. View "Georgia v. Copeland et al." on Justia Law

Green, was convicted of two counts of the first-degree murder for the gang-related shooting death of Lewis and was sentenced to 35 years’ imprisonment on one of those convictions. The conviction was affirmed on direct appeal. The trial court rejected a post-conviction petition alleging that Green’s trial counsel, Ritacca, labored under a per se conflict of interest because his trial counsel had previously represented Williams, the intended victim of the murder, who was in the vehicle with Lewis at the time of the shooting. Green neither knew about the conflict nor waived the conflict was rejected.The appellate court and Illinois Supreme Court affirmed, finding no per se conflict of interest. Only three situations establish a per se conflict of interest: where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; where defense counsel contemporaneously represents a prosecution witness; and where defense counsel was a former prosecutor who had been personally involved with the prosecution of the defendant. Ritacca’s representation of both defendant and Williams did not fit within any of those three per se conflict situations. View "People v. Green" on Justia Law

After a bench trial, Xun Wang was convicted of two counts of Medicaid fraud, and one count of unauthorized practice of a health profession. Defendant earned a medical degree in her native China, and earned a Ph.D. in basic medical science in the United States. Notwithstanding her education in the United States and abroad, defendant was never licensed to practice in a health profession in the United States. The Michigan Department of the Attorney General’s Health Care Fraud Division discovered that a high volume of narcotics prescriptions were being written at the clinic for which she worked part time. In 2014, the department conducted an investigation, during which Drew Macon and Lorrie Bates, special agents with the department, separately went to the clinic while posing as patients with Medicaid benefits. Defendant saw both agents when they posed as patients, identified herself as clinic-owner Dr. Murtaza Hussain’s assistant, and took written notes of their medical histories. Defendant also performed physical examinations, answered their questions, and wrote prescriptions for both agents on a prescription pad that Hussain had previously signed, including a prescription for Ambien, a Schedule 4 controlled substance. The patients’ notes were entered into the clinic’s computer system and were electronically signed by Hussain; the notes indicated that both defendant and Hussain had seen the agents. The Medicaid processing system reflected that claims were submitted for both agents’ treatment and were paid to Hussain for a total of $260. The trial court sentenced her to concurrent terms of 365 days in jail for each conviction, which was suspended upon the successful completion of five years’ probation and the payment of $106,454 in fines and costs. The Michigan Supreme Court found after review that while the lower courts did nor err in determining there was sufficient evidence to convict defendant on unauthorized practice of a health profession, the evidence did not establish she was aware or should have been aware that the patients at issue were Medicaid beneficiaries and their treatment was substantially certain to cause the payment of a Medicaid benefit under the applicable statute. Therefore, defendant's convictions of Medicaid fraud were reversed. The matter was remanded back to the trial court for reconsideration of the fines assessed. View "Michigan v. Wang" on Justia Law