Justia Professional Malpractice & Ethics Opinion Summaries

Acting pro se, Clay Jones sued his former attorney, Alan Whisenand, for legal malpractice and civil rights violations allegedly committed in the course of civil commitment proceedings under the Sexually Violent Predator Act (SVPA). The trial court sustained Whisenand’s demurrer to the first amended complaint without leave to amend on the grounds that: (1) Jones failed to allege actual innocence of all charges in the underlying criminal case or post-conviction exoneration; and (2) Jones failed to show that Whisenand was a “state actor” acting “under color of state law.” After review, the Court of Appeal concluded that the actual innocence requirement did not apply to SVPA proceedings. However, public policy considerations underlying the actual innocence requirement (namely, judicial economy and the desire to avoid conflicting resolutions) compelled the conclusion that alleged SVPs should not be able to pursue causes of action for legal malpractice in the course of their SVPA proceedings unless and until such proceedings have been terminated in their favor. "[O]ur conclusion does not leave alleged SVPs without a remedy while proceedings are ongoing, as they may still seek relief for ineffective assistance of counsel in the SVPA proceedings themselves. Jones does not, and cannot, allege that the pending SVPA proceedings have been terminated in his favor. We therefore conclude the trial court properly sustained Whisenand’s demurrer to Jones’s cause of action for legal malpractice." The SVPA proceedings against Jones were still pending, raising the possibility that he might be able to comply with the favorable termination requirement in the future. Accordingly, the Court concluded the demurrer should have been sustained with leave to amend. With respect to his civil rights claim, the Court concluded the trial court properly sustained the demurrer without leave to amend. View "Jones v. Whisenand" on Justia Law

Hannon, an attorney, represented Barber in litigation against the victim, Barber’s former domestic partner, Dr. Magno. In December 2006, the parties agreed that Barber would fund a college trust for their children. Barber paid $27,500.32 to Hannon as the trustee of the children’s funds and authorized Hannon to open a bank account. In February 2011, the victim became aware that the children’s funds had been misappropriated. Hannon may have used the money to cover legal fees owed by Barber. Charged with grand theft by embezzlement by a fiduciary (Pen. Code 487(a), 506), Hannon ultimately pled no contest to misdemeanor theft by embezzlement. The trial court placed him on probation for two years, ordered him to perform 240 hours of community service, and ordered him to pay $40,800 in restitution to the victim: $25,000 in attorney’s fees, $15,000 in lost wages, and $800 in mileage. The court of appeal rejected challenges to the restitution award and held that the victim was entitled to file a victim impact statement on appeal, pursuant to the Victims’ Bill of Rights Act of 2008 (Marsy’s Law, Proposition 9 (2008)), but may not raise present legal issues not raised by Hannon or facts not in the record below View "People v. Hannon" on Justia Law

Appellants N.C. and Alethea Young, Ph.D., appealed superior court orders denying Dr. Young’s motion to quash a subpoena for N.C.’s psychological records issued by appellee, the New Hampshire Board of Psychologists (Board), and dismissing N.C.’s petition for a declaratory judgment to prevent the Board from obtaining the records. N.C. has been a patient of Young for many years, attending at least two therapy sessions per week since the age of two. In August 2013, when N.C. was still a minor, she informed Young that her father, S.C., had physically and emotionally abused her. According to Young, throughout her treatment of N.C., she witnessed what she described as S.C.’s aggressive and humiliating treatment of his daughter, both in public as well as in therapy sessions. In September, S.C. filed a written complaint against Young with the Board. The complaint alleged that Young had breached her professional obligations by: (1) becoming personally over-involved with N.C., thus sacrificing her objectivity; (2) providing counseling to both S.C. and his daughter, thus creating an insurmountable conflict of interest; (3) violating RSA 169-C:29 (2014) by failing to timely report suspected abuse of a child to DCYF; (4) violating RSA 633:1, I-a (2007) and 18 U.S.C. § 1201(a) (2012) by detaining and concealing N.C., who was a minor at the time, from S.C. when she drove N.C. to Vermont without S.C.’s knowledge or consent; and (5) failing to respect S.C.’s wishes that she no longer treat his daughter. On appeal, appellants argued that the trial court erred in enforcing the subpoena because the Board failed to establish that it had just cause to issue the subpoena. Appellants also contended that, even if just cause existed to issue the subpoena, once they objected, the subpoena could not be enforced by the court because the Board failed to sustain what, in their view, was the additional burden necessary to pierce the patient’s privilege by showing that there was a reasonable probability the records were relevant and material and that the Board had an essential need for them. Furthermore, appellants argued that, even if the Board met the burden necessary to pierce the privilege, the court erred in not conducting an in camera review of the records before ordering compliance with the subpoena in order to limit the scope of disclosure. After review, the New Hampshire Supreme Court agreed with appellants that the statute required a court order to obtain a patient’s records when there was an objection to compliance with a subpoena based upon a claim of privilege. However, the Court concluded that the trial court did not err in finding that, under the circumstances of this case, the privilege must yield to the Board’s proper exercise of its regulatory responsibilities with regard to its licensee, Dr. Young. View "N.C. v. New Hampshire Board of Psychologists" on Justia Law

After a jury trial, Stephen Arny, M.D., was convicted of conspiracy to distribute and unlawfully dispense prescription pain medications, 21 U.S.C. 841(a)(1) and 846. Approximately three months later, but before sentencing, Arny secured new counsel, who later moved for a new trial based on trial counsel’s constitutionally ineffective assistance. The district court granted the motion based on its finding that Arny’s Sixth Amendment right to counsel had been violated by counsel’s misrepresentation that the government had stated that another doctor (Saxman) who had worked with Arny and his co-defendants either had a plea deal or would be indicted soon and that her clinic was searched; counsel’s failure to interview Saxman or call her to testify in order to explain the legitimacy of her treatment plans that Arny continued; and counsel’s failure to investigate or interview any of Arny’s patients. The Sixth Circuit affirmed. The affidavits of Saxman and the former patients establish a “reasonable probability that, but for [trial] counsel’s unprofessional errors, the result of the proceeding would have been different.” View "United States v. Arny" on Justia Law

Dubrule, a former medical doctor, was convicted of conspiracy to distribute controlled substances, 21 U.S.C. 846, and 44 counts of distributing controlled substances, 21 U.S.C. 841(a)(1). Kim, Dubrule’s wife and medical assistant, was convicted of conspiring with her husband. The district court sentenced Dubrule to 150 months’ imprisonment and Kim to 18 months’ imprisonment. The Sixth Circuit affirmed, rejecting Dubrule’s arguments that the district court erred by finding him competent to stand trial and proceed with sentencing and by failing to sua sponte order a competency hearing either before or during trial; that his pre-trial attorney and standby counsel at trial provided ineffective assistance by failing to request a competency evaluation; that the district court erred by holding that he had waived his insanity defense; and that his due process and Sixth Amendment rights were violated when the court, in making its competency determination, relied upon an expert opinion that misleadingly claimed to be “peer reviewed.” View "United States v. Dubrule" on Justia Law

Plaintiff sued his former criminal defense attorneys for legal malpractice, alleging that they allowed him to plead guilty to a crime that lacked a factual basis. The district court granted summary judgment in favor of the attorneys on the basis that Plaintiff could not show he was actually innocent of any offense that formed the basis for the underlying criminal case. The Supreme Court reversed, holding that a criminal defendant’s showing of actual innocence is not a prerequisite to bringing a legal malpractice against his or her former criminal defense attorney. Instead, innocence or guilt should be taken into account when determining whether the traditional elements of a legal malpractice claim have been established. Remanded. View "Barker v. Capotosto" on Justia Law

After a second mistrial, Appellant was convicted of sex-related crimes. The convictions were affirmed on appeal. Appellant later filed a Kan. Stat. Ann. 60-1507 motion alleging ineffective assistance of both trial counsel and direct appeal counsel. The district court ultimately granted the motion and reversed the conviction. Thereafter, pursuant to a plea agreement, Appellant entered an Alford plea on different charges. In exchange, the State dropped the original charges. Between entering into the plea agreement and sentencing, Appellant filed this legal malpractice action against trial and appellate counsel and the Board of Indigents’ Defense Services (BIDS). The district court ruled that BIDS lacked the capacity to be sued, that Appellant’s Alford plea foreclosed the relief sought, and that Appellant’s claim was time barred. The Court of Appeal agreed with the district court with the exception of the statute of limitations issue, ruling that Appellant’s claim was timely filed. The Supreme Court affirmed in part and reversed in part, holding (1) the Court of Appeals correctly found that BIDS is not subject to suit in a legal malpractice action; (2) Defendant may pursue this legal malpractice claim without first demonstrating actual innocence of the charged crimes; and (3) this suit was timely filed under the applicable statute of limitations. View "Mashaney v. Bd. of Indigents' Defense Servs." on Justia Law

Appellant William Foondle appeals the superior court’s dismissal of his claims for legal malpractice against the public defenders who represented him in a criminal case. A grand jury indicted William Foondle for felony driving under the influence (DUI) in 2007. The DUI charge was a felony because Foondle had been convicted of DUI twice in the preceding ten years: once earlier in 2007 and once in North Dakota in 1999. Assistant public defenders Angela O’Brien and Daniel Lord were assigned to defend Foondle. In dismissing Foondle’s malpractice claims, the superior court relied on the public policy principle that precluded criminally convicted plaintiffs from civil recovery based on the alleged negligence of their former defense counsel. Upon review, the Supreme Court held that the superior court’s legal analysis was correct, and affirmed the judgment on that basis. Furthermore, the Court rejected, as unsupported, Foondle’s argument that the dismissal violated his rights to due process and access to the courts. View "Foondle v. O'Brien" on Justia Law

When Bloodman withdrew as Haynes’s attorney in a criminal case, the judge ordered her to return discovery material “as soon as possible” and emailed the order, instructing her “to turn over to the United States Attorney’s Office any and all discovery material previously provided her by the Government.” After 20 days, she had not returned the material. The judge issued an order to return it within a week, or risk a show-cause order and sanctions. Bloodman, no longer on the electronic filing system, did not receive the email; the clerk mailed her a hard copy. She still had not returned the material 11 days later. The judge emailed her a show-cause order. Bloodman sent the material the next day via overnight mail, though delivery was delayed due to weather. At the show-cause hearing, Bloodman apologized. She claimed not to receive the second order, the only one to set an exact date and to have had medical issues. The judge did not find bad faith or hold her in contempt, but ordered her to pay $250 for the government’s “time and effort and energy.” The Eighth Circuit dismissed an appeal for lack of jurisdiction because Haynes’s criminal case is still pending. View "United States v. Bloodman" on Justia Law

In March 2011, the Chief Judge of the Clayton Judicial Circuit, at the request of the Clayton County District Attorney, issued an order authorizing the impaneling of a special purpose grand jury to investigate certain alleged public corruption. The special purpose grand jury issued subpoenas to various witnesses, including appellee John Lampl, who testified before it in June 2011. In July 2011, the special purpose grand jury returned a 16-count bill of indictment against Lampl on charges of conspiracy in restraint of free and open competition, false statements and writings, and perjury. The indictment was subsequently nolle prossed in the aftermath of the Court of Appeals’ holding in "Kenerly v. Georgia," (715 SE2d 688) (2011)), that the authority of a special purpose grand jury is limited to conducting investigations and does not include the power to issue indictments. Shortly thereafter, in September 2011, Lampl was indicted by a regular Clayton County grand jury on eight counts, including one perjury count, similar to those charged in the special purpose grand jury’s initial indictment. The conspiracy and false statements counts all pertain to alleged conduct by Lampl in his capacity as City Manager for the City of Morrow, in connection with a City real estate development project known as "Olde Towne Morrow." The Georgia Supreme Court granted the State’s petition for a writ of certiorari in this case to determine whether the Court of Appeals properly affirmed the superior court’s order dismissing a particular count of the indictment and suppressing statements made by the defendant before the special purpose grand jury. While the Supreme Court agreed with the superior court’s conclusion that the special purpose grand jury exceeded the scope of its authority in its investigation, the Court held that the relief granted was improper. The Court therefore reversed. View "Georgia v. Lampl" on Justia Law