Justia Professional Malpractice & Ethics Opinion Summaries

Robert G. Smith, an Assistant Federal Defender for the Western District of New York, moved to withdraw from representing defendant in a criminal action pending in the district court. In this interlocutory appeal, Smith challenged the denial of his motion. The court did not reach the merits of Smith's argument based on his professional responsibility as an attorney because the court concluded on other grounds that the denial of the motion exceeded the limits of the district court's discretion. Defendant, having been informed of his right to counsel, stated that he did not wish to have appointed counsel, made no attempt to establish financial eligibility for appointed counsel under the Criminal Justice Act of 1964 (CJA), 18 U.S.C. 3006A, and refused to recognize Smith as his attorney. Under these circumstances, Smith's appointment was improper from the outset, and he could not be required to continue serving as defendant's attorney. View "United States v. Barton" on Justia Law

Defendant-Appellant George David Gordon was a former securities attorney convicted of multiple criminal charges relating to his alleged participation in a "pump-and-dump" scheme where he (along with others) violated the federal securities laws by artificially inflating the value of various stocks, then turning around and selling them for a substantial profit. The government restrained some of his property before the indictment was handed down and ultimately obtained criminal forfeiture of that property. On appeal, Defendant raised multiple issues relating to the validity of his conviction and sentence, and the propriety of the government’s conduct (both before and after trial) related to the forfeiture of his assets. In the end, the Tenth Circuit found no reversible error and affirmed Defendant's conviction and sentence, as well as the district court’s forfeiture orders. View "United States v. Gordon" on Justia Law

Tamara Lucas and her husband James brought a legal malpractice claim against attorney Mat Stevenson after they hired Stevenson to defend James against criminal charges and to represent them in a civil suit against the city police department, the city, and individual police officers that arrested James for disturbing the peace and felony assault on a peace officer. However, Stevenson later learned that the Lucases had previously filed for bankruptcy. The civil suit was determined to an asset of the bankruptcy estate, and Stevenson was reassigned to pursue the case on behalf of the bankruptcy estate. After a settlement agreement was reached, the Lucases brought this action against Stevenson. The district court granted summary judgment in favor of Stevenson. The Supreme Court affirmed, holding that the district court correctly determined (1) the Lucases' civil claims were properly determined to be an asset of the bankruptcy estate; and (2) Stevenson did not represent the Lucases at the time the claims were settled, and therefore, the Lucases had no standing to bring a legal malpractice claim against him. View "Lucas v. Stevenson" on Justia Law

Defendants pleaded guilty to defrauding health-care insurers by billing for pain injections that they never administered. Defendants appealed the district court's order that they pay over $43 million in restitution to 32 victims defrauded by the scheme. The court concluded that the record did not support the entire restitution amount recommended and therefore the district court abused its discretion in adopting the unsupported figure. The court held, however, that the district court did not abuse its discretion in declining to apply a restitution credit. Accordingly, the court vacated the order of restitution and remanded for recalculation. As defendants' plea agreements stipulated to a forfeiture money judgment in the same amount as the restitution award, the court also vacated the amount of the forfeiture award and remanded for recalculation. The court further held that the government did not breach the plea agreements with defendants. View "United States v. Sharma" on Justia Law

Goldberg, a medical malpractice attorney, appeared before Judge Maloney in several cases. Following complaints that Goldberg concealed assets and retained unearned fees, Maloney ordered Goldberg to pay the estates involved. Goldberg failed to do so. Maloney directed him to show cause why he should not be held in contempt. Following a hearing, Maloney found Goldberg to be in criminal contempt and cited Goldberg for attempting to suborn witnesses, charges that did not appear on the hearing notice. Goldberg received a sentence of 18 months. An Ohio appellate court affirmed. Before the Ohio Supreme Court, Goldberg argued for the first time that he had not received sufficient notice of the charges and ineffective assistance because his attorney failed to raise this notice claim. The Ohio Supreme Court declined further review. In 2004, the district court granted habeas relief on the basis that Goldberg received constitutionally inadequate notice. The Sixth Circuit reversed, finding that Goldberg had procedurally defaulted on his lack-of-notice claim by failing to raise it in the state court of appeals. On remand, the district court determined that Goldberg had not demonstrated sufficient cause or prejudice to overcome the procedural default, and denied his petition. The Sixth Circuit affirmed. View "Goldberg v. Maloney" on Justia Law

"By all appearances, Defendant Howard Kieffer had a successful nationwide criminal law practice." Defendant managed to gain admission to multiple federal trial and appellate courts across the country where he appeared on behalf of numerous criminal defendants. Defendant never attended law school, sat for a bar exam, nor receive a license to practice law. A North Dakota jury convicted Defendant of mail fraud and for making false statements. The jury found Defendant gained admission to the District of North Dakota by submitting a materially false application to the court, then relied on that admission to gain admission to the District of Minnesota, District of Colorado, and Western District of Missouri. The district court sentenced Defendant to 51 months' imprisonment and ordered him to pay restitution to six victims of his scheme. A jury in Colorado also convicted him of making false statements, wire fraud and contempt of court. The district court sentenced Defendant to 57 months' imprisonment to run consecutively to the 51 month sentence previously imposed on him in North Dakota. The court further ordered him to pay restitution to seven victims of his scheme unaccounted for in North Dakota, and directed him as a special condition of supervised release to obtain the probation office's preapproval of any proposed employment or business ventures. Defendant appealed his most recent convictions and sentence from Colorado, each based on his Sixth Amendment right to have the Government prove, and a jury find, all elements of the charged crimes beyond a reasonable doubt. Further, Defendant presented five challenges to his sentence, three of which bore directly upon the district court’s application of the Sentencing Guidelines. Upon review, the Tenth Circuit found that the record reflected that by the time of Defendant's actual sentencing, the district court had decided to sentence him within the advisory guideline range. The court then proceeded to calculate Defendant’s guideline range incorrectly on the basis of numerous procedural errors, both factual and legal. As a result, the court selected a sentence from the wrong guideline range. Accordingly, the Tenth Circuit vacated Defendant's sentence on Counts I and II of the superceding indictment and remanded the case for resentencing. The Court affirmed the district court in all other respects. View "United States v. Kieffer" on Justia Law

Officers, responding to an assault in progress, saw defendant, who voluntarily submitted to a pat down. A pistol was found in his coat pocket. Charged possession of a firearm by a felon, 18 U.S.C. 922(g)(1), defendant insisted that the police had planted the gun. His lawyer believed that he could not argue that the firearm was the fruit of an unreasonable search. Following his conviction, defendant brought a collateral proceeding under 28 U.S.C. 2255, claiming ineffective assistance in that his attorney did not move to suppress the firearm as the product of an unreasonable and did not explain to defendant that his testimony at a suppression hearing could not be used at trial as evidence of his guilt. The district court rejected the petition. The Seventh Circuit reversed. Defendant’s insistence that the police planted the gun neither justified nor compelled counsel to refrain from challenging the search that produced the weapon. The court remanded for determination of whether defendant was prejudiced by that failure. View "Gardner v. United States" on Justia Law

Defendants, two of three lawyers who represented several hundred Kentucky clients in a mass-tort action against the manufacturer of the defective diet drug "fen-phen," settled the case for $200 million, which entitled them under their retainer agreements to approximately $22 million each in attorney fees. By visiting clients and obtaining their signatures on "confidential settlements," for lesser amounts, the two actually disbursed slightly more than $45 million, less than 23 percent of the total settlement. The lawyers kept the remainder for themselves and associated counsel, transferring much of it from the escrow account to various other accounts, including out-of-state accounts. The scheme was discovered; the lawyers were disbarred and convicted of conspiracy to commit wire fraud, 18 U.S.C. 1343, 1349. One was sentenced to 240 months, the other to 300 months. They were ordered to pay more than $127 million in restitution. The Sixth Circuit affirmed, rejecting a variety of challenges to the sufficiency of the evidence and trial procedures. View "United States v. Cunningham" 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. 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