Justia Professional Malpractice & Ethics Opinion Summaries

The State Board of Dentistry fined Plaintiff-Appellant Lon Peckham, DMD for failing to adequately inform a patient prior to performing a procedure, and for publishing misleading material on his website. The district court affirmed the Board's decision. On appeal, Plaintiff challenged the district court's affirming of the Board's final Order. Upon review of the matter, the Supreme Court found insufficient evidence to support findings that Plaintiff failed to inform a patient prior to performing a procedure or for publishing misleading material. Accordingly, the Supreme Court reversed the district court. View "Peckham, DMD v. State Bd of Dentistry" on Justia Law

In 2011, the Board of Cosmetology and Barbering suspended Petitioner Randall Richardson's license due to his leasing work space to his wife who Petitioner knew did not have a valid license. A Hearing Officer recommended a fine and a 90-day suspension of Petitioner's license. The Board voted to adopt the Hearing Officer’s recommendations. The Superior Court affirmed the Board’s decision. On appeal, Petitioner argued: (1) the Board failed to create a complete record for the Supreme Court to review on appeal; (2) the Board failed to properly appoint the Hearing Officer to his case; (3) the Board failed to consider exceptions to the Hearing Officer’s recommendation; (4) the Board erred in suspending Petitioner's license because he only violated the requirements of his Shop License; and (5) the Hearing Officer lacked statutory authority to conduct hearings involving potential license suspensions. Upon review, the Supreme Court concluded that the Hearing Officer had the authority to act and that the Board had the authority to suspend Petitioner's License. However, the Court agreed that the Board created an insufficient record for appellate review. Accordingly, the Superior Court's judgment was vacated and the matter remanded for further proceedings.View "Richardson v. Board of Cosmetology & Barbering" on Justia Law

Appellant John Rainey sued the Honorable Nikki Haley, Goveror of South Carolina, seeking a declaration that the Governor violated the State Ethics Act when she was a member of the House of Representatives. The circuit court dismissed the action for lack of jurisdiction, finding the House Ethics Committee had exclusive jurisdiction to hear ethics complaints against its members. The Supreme Court agreed and affirmed.View "Rainey v. Haley" on Justia Law

In 1985, a manager was shot to death during a robbery of his restaurant. In the following months, a second manager was murdered and another survived similar robberies. In each restaurant, the robber fired two .38 caliber bullets; all six bullets were recovered. The survivor, Smotherman, described his assailant and picked Hinton’s picture out of a photographic array. The police arrested Hinton and recovered from his house a .38 caliber revolver belonging to his mother, who shared the house. The Alabama Department of Forensic Sciences concluded that the six bullets had all been fired from the Hinton revolver. Hinton was charged with two counts of murder. He was not charged with the Smotherman robbery. The prosecution strategy was to link Hinton to the Smotherman robbery by eyewitness testimony and forensic evidence about the bullets and to persuade the jury that, given the similarity of the crimes, Hinton must have committed the murders. Hinton presented witnesses in support of his alibi that he was at work at the time of the Smotherman robbery. The six bullets and the revolver were the only physical evidence. Hinton’s attorney obtained a grant of $1,000 to hire an expert to challenge that evidence and did not request more funding, nor correct the judge’s mistaken belief that a $1,000 limit applied. Under that mistaken belief, Hinton’s attorney found only one person who was willing to testify: Payne. Hinton’s attorney believed that Payne did not have the necessary expertise. The prosecutor discredited Payne. The jury convicted Hinton; the court imposed a death sentence. In state post-conviction proceedings, Hinton alleged ineffective assistance and produced three highly credible experts, who testified that they could not conclude that any of the bullets had been fired from the Hinton revolver. The state did not submit rebuttal evidence. Following a remand by the state’s highest court, the trial court held that Payne was qualified to testify as a firearms and toolmark expert under the then-applicable standard. The Alabama Supreme Court denied review. The U.S. Supreme Court vacated and remanded, holding that Hinton’s attorney rendered ineffective assistance under its “Strickland” test. It was unreasonable to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was limited. View "Hinton v. Alabama" on Justia Law

In 1985, a manager was shot to death during a robbery of his restaurant. In the following months, a second manager was murdered and another survived similar robberies. In each restaurant, the robber fired two .38 caliber bullets; all six bullets were recovered. The survivor, Smotherman, described his assailant and picked Hinton’s picture out of a photographic array. The police arrested Hinton and recovered from his house a .38 caliber revolver belonging to his mother, who shared the house. The Alabama Department of Forensic Sciences concluded that the six bullets had all been fired from the Hinton revolver. Hinton was charged with two counts of murder. He was not charged with the Smotherman robbery. The prosecution strategy was to link Hinton to the Smotherman robbery by eyewitness testimony and forensic evidence about the bullets and to persuade the jury that, given the similarity of the crimes, Hinton must have committed the murders. Hinton presented witnesses in support of his alibi that he was at work at the time of the Smotherman robbery. The six bullets and the revolver were the only physical evidence. Hinton’s attorney obtained a grant of $1,000 to hire an expert to challenge that evidence and did not request more funding, nor correct the judge’s mistaken belief that a $1,000 limit applied. Under that mistaken belief, Hinton’s attorney found only one person who was willing to testify: Payne. Hinton’s attorney believed that Payne did not have the necessary expertise. The prosecutor discredited Payne. The jury convicted Hinton; the court imposed a death sentence. In state post-conviction proceedings, Hinton alleged ineffective assistance and produced three highly credible experts, who testified that they could not conclude that any of the bullets had been fired from the Hinton revolver. The state did not submit rebuttal evidence. Following a remand by the state’s highest court, the trial court held that Payne was qualified to testify as a firearms and toolmark expert under the then-applicable standard. The Alabama Supreme Court denied review. The U.S. Supreme Court vacated and remanded, holding that Hinton’s attorney rendered ineffective assistance under its “Strickland” test. It was unreasonable to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was limited. View "Hinton v. Alabama" on Justia Law

Plaintiffs sought to enjoin enforcement of Senate Bill 1172, which banned state-licensed mental health providers from engaging in "sexual orientation change efforts" ("SOCE") with patients under 18 years of age, because it violated the First Amendment and infringed on several other constitutional rights. Undertaking plenary review, the court held that SB 1172 was a regulation of professional conduct and, therefore, did not violate the free speech rights of SOCE practitioners or minor patients under rational basis review. The court also held that the statute was neither vague nor overbroad and did not violate parents' fundamental rights. Accordingly, the court reversed the order granting preliminary relief in Case No. 13-15023 and affirmed the denial of preliminary relief in Case No. 12-17681. View "Pickup, et al. v. Brown, Jr., et al." on Justia Law

Plaintiff, an attorney, filed suit against the Judge Advocate General (JAG) of the Navy and others, alleging violation of his constitutional rights in an administrative decision which suspended him from practice before naval courts. The disciplinary proceedings stemmed from plaintiff's filing of an appellate brief containing statements he knew were false and misleading. The court concluded that the district court did not err in holding that the Navy JAG had authority to discipline plaintiff; plaintiff received ample due process and his Fifth Amendment rights were not violated during the proceedings against him; and the record did not support plaintiff's Administrative Procedure Act (APA), 5 U.S.C. 551, 701, and 706, claim. Accordingly, the court affirmed the district court's dismissal of plaintiff's claims and denied his request for mandamus review. View "Partington v. Houck, et al." on Justia Law

Appellant Mauricio Celis was never licensed to practice law in Texas or any other jurisdiction, but he continuously held himself out as a lawyer in Texas over a period of several years in a lucrative business. Appellant acknowledged that he did not have a "cedula," nor a certificate from Mexico's Ministry of Education. Rather, he testified that he had a diploma in judicial sciences and that he, therefore, believed that he was "considered a lawyer in Mexico." He called two witnesses who testified that every Mexican citizen who was of legal age and sound mind is a "licenciado." Appellant was charged with 23 counts of falsely holding himself out as a lawyer in violation of Texas Penal Code Section 38.122 (the "false-lawyer statute"). With respect to a culpable mental state, the trial court's instructions required the jury to determine only whether appellant intended to obtain an economic benefit for himself in holding himself out as a lawyer. The instructions did not include a culpable mental state with respect to the remaining elements that alleged that appellant had held himself out as an attorney, was not currently licensed to practice law, and was not in good standing with the State Bar of Texas and other applicable authorities. In deciding appellant's petition for discretionary review, the Supreme Court considered three issues: (1) whether the offense of falsely holding oneself out as a lawyer does not require an instruction as to a culpable mental state beyond the intent expressly prescribed by the plain language in that statute; (2) whether appellant was not entitled to an instruction on a mistake-of-fact defense because his requested instruction did not negate the culpability required for the offense; and (3) whether the appellate court properly determined that the trial court's instruction on the definition of "foreign legal consultant" was not an improper comment on the weight of the evidence. Finding no error, the Supreme Court affirmed. View "Celis v. Texas" on Justia Law

Petitioner served two terms as a Public Service Commissioner (PSC). While serving his first term at the PSC, Respondent, campaign manager for Petitioner's opponent in the upcoming election, filed four complaints against Petitioner with the Commissioner of Political Practices (Commissioner), alleging that Petitioner had violated the statutory Code of Ethics by accepting gifts of substantial value from two corporations with which the PSC regularly dealt and by using state resources to aid his reelection campaign and for personal business. Following a three-day hearing on Respondent's complaints, a hearing examiner determined that Petitioner violated Mont. Code Ann. 2-2-104 two times by receiving "gifts of substantial value" and violated Mont. Code Ann. 2-2-121 five times by using state facilities and equipment for election purposes. The Commissioner affirmed, ordering Petitioner to pay $5,750 in fines and $14,945 for the costs of the hearing. The district court affirmed. The Supreme Court affirmed, holding that the district court did not err by concluding (1) Respondent had legal standing to file ethics complaints against Petitioner; (2) Petitioner received unlawful gifts; (3) Petitioner improperly used State facilities for political purposes; and (4) the penalty statute for ethics violations was not unconstitutionally vague. View "Molnar v. Fox" on Justia Law

During a meeting with staff members of defendants Rutgers University and the University of Medicine and Dentistry of New Jersey (UMDNJ), plaintiff D.D. disclosed private health information that she requested be kept confidential. D.D. later discovered press releases issued by defendants that disclosed her private health information. Plaintiff immediately sent a letter directing defendants to cease and desist from communicating her personal information. Shortly thereafter, plaintiff, accompanied by counsel, met with representatives of defendants, accompanied by counsel. According to plaintiff, based on apologies and assurances made during the meeting, she believed that the matter could be handled privately. Plaintiff’s attorney subsequently asked plaintiff for additional information, which she promptly provided. Although her attorney assured her that he would "take care of everything," he was thereafter unresponsive to her efforts to contact him, which included at least ten telephone calls. Because she was unable to reach him, plaintiff retained new counsel in April 2010. The issue before the Supreme Court in this matter was: (1) whether the inattention of plaintiff’s counsel or her medical conditions constituted the "extraordinary circumstances" needed to excuse an untimely notice of tort claim under the New Jersey Tort Claims Act (TCA); and (2) whether a timely oral notice of tort claim could be permitted under the doctrine of substantial compliance. Upon review, the Supreme Court concluded that neither attorney inattention nor incompetence constituted an extraordinary circumstance sufficient to excuse failure to comply with the ninety-day filing deadline under the TCA; plaintiff's medical proofs were insufficient to meet the extraordinary circumstances standard; and the doctrine of substantial compliance could not serve to relieve a claimant of the TCA's written-notice requirement. View "D.D. v. Univer. of Med. & Dentistry of New Jersey" on Justia Law