Justia Professional Malpractice & Ethics Opinion Summaries

On February 14, 2013, the Attorney General received an ethics complaint, alleging possible violations of the Ethics Act by the Speaker of the House of Representatives, Robert W. Harrell, Jr. The complaint was originally submitted by a private citizen to the House Legislative Ethics Committee. That same day, the Attorney General forwarded the complaint to South Carolina Law Enforcement Division (SLED), and SLED carried out a 10-month criminal investigation into the matter. At the conclusion of the investigation, the Chief of SLED and the Attorney General petitioned the presiding judge of the state grand jury to impanel the state grand jury on January 13, 2014. Acting presiding judge of the state grand jury, the Honorable L. Casey Manning, subsequently impaneled the state grand jury. On February 24, 2014, the Speaker filed a motion to disqualify the Attorney General from participating in the grand jury investigation. On March 21, 2014, a hearing was held on the motion after which the court sua sponte raised the issue of subject matter jurisdiction. Another hearing was held, and the court found, as presiding judge of the state grand jury, it lacked subject matter jurisdiction to hear any matter arising from the Ethics Act, and refused to reach the issue of disqualification. The court discharged the grand jury and ordered the Attorney General to cease his criminal investigation. The Attorney General appealed that order to the Supreme Court. After its review, the Supreme Court concluded the circuit court erred in concluding that the House Ethics Committee had exclusive jurisdiction over the original complaint. While the crime of public corruption could include violations of the Ethics Act, the state grand jury's jurisdiction is confined to the purposes set forth in the constitution and the state grand jury statute, as circumscribed by the impaneling order. While the Court reversed the circuit court's order, it "in no way suggest[ed] that it was error for the presiding judge to inquire whether the state grand jury was 'conducting investigative activity within its jurisdiction or proper investigative activity.'" The case was remanded for a decision on whether the Attorney General should have been disqualified from participating in the state grand jury proceedings. View "Harrell v. Attorney General of South Carolina" on Justia Law

The Certified Professional Guardianship Board (Board) has petitioned the Supreme Court to suspend guardian Lori Petersen for actions stemming from her guardianship of D.S. and J.S. Petersen has been a certified professional guardian since 2001. She owned and operated Empire Care and Guardianship, a large agency serving over 60 wards. From December 2009 until April 2010, the Board received a number of grievances and complaints regarding Petersen's treatment of three wards who were all, at one point, housed at Peterson Place, an adult family home. Petersen contended that suspension was improper and suggested:(1) the Board ran afoul of separation of powers principles; (2) violated the appearance of fairness doctrine; (3) impermissibly lowered the evidentiary standard; and (4) failed to consider the proportionality of the sanction. The Supreme Court agreed with Petersen as to her last contention: "She has questioned, albeit obliquely, the proportionality of the sanction, and so the Board should have considered the sanction's magnitude relative to those imposed in other cases. Accordingly, we remand to the Board to conduct a consistency analysis pursuant to its internal regulations" and the Court's opinion. View "In re Disciplinary Proceeding Against Petersen" on Justia Law

The Judicial Tenure Commission (JTC) filed a formal complaint against Wayne Circuit Court Judge Bruce Morrow, alleging 10 counts of judicial misconduct that arose out of criminal cases over which he had presided. After hearing argument on objections to the master’s report, a majority of the JTC concluded that the evidence established judicial misconduct in eight of the ten allegations and recommended that respondent be suspended for 90 days without pay. After review of the entire record and due consideration of the parties’ arguments, the Supreme Court agreed with the JTC’s conclusion that respondent committed judicial misconduct, but the Court was not persuaded that the recommended sanction was appropriate in this case. Instead, the Court held that a 60-day suspension without pay was proportionate to the body of judicial misconduct established by the record. View "In re Hon. Bruce Morrow" on Justia Law

Appellant, a Kentucky-licensed land surveyor, testified as a trial expert on behalf of defendants in a quiet-title action in circuit court. The trial court eventually ruled in favor of the plaintiffs. Alleging that Appellant gave misleading and inaccurate trial testimony during the trial, the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors initiated disciplinary proceedings against Appellant. The Board ultimately suspended Plaintiff’s surveyor’s license, concluding that Plaintiff’s expert witness performance violated professional standards. Appellant sought judicial review. The Supreme Court held (1) a number of the statutes and regulations enforced by the Board against Appellant were impermissibly vague as applied to him; and (2) the Board’s decision to discipline Appellant was supported by substantial evidence. Remanded to the Board for reconsideration of Appellant’s sanction. View "Curd v. Ky. State Bd. of Licensure for Prof’l Eng’rs & Land Surveyors" on Justia Law

Dr. Obteen Nassiri owned and operated a chiropractic practice and employed Dr. Edward Johnson as a chiropractic physician. Both Appellants were licensed chiropractic physicians in Nevada at the time. Responding to allegations of unprofessional conduct, the Chiropractic Physicians’ Board of Nevada filed complaints for disciplinary action against Appellants. After an adjudicative hearing, the Board found Appellants had committed professional misconduct, revoked Nassiri’s license and mandated that Nassiri could not own any interest in a chiropractic practice until his license was restored, and suspended Johnson’s license for one year with conditions. On review, the district court entered judgment against Appellants. On appeal, Appellants argued that the Board improperly used a substantial evidence standard of proof to determine that Appellants committed professional misconduct. The Supreme Court affirmed, holding (1) in the absence of a specific statutory mandate, agencies generally must utilize, at a minimum, the preponderance-of-the-evidence standard in adjudicative hearings as a standard of proof; and (2) because the Board applied at least the preponderance-of-the-evidence standard in this case, the Board did not err in finding that Appellants committed violations warranting professional discipline. View "Nassiri v. Chiropractic Physicians' Bd." on Justia Law

Appellant was terminated from his employment as a registered nurse at a community hospital after a patient under Appellant’s care departed from the hospital, unescorted, into blizzard-like conditions and died less than 500 feet from the hospital’s entrance. After a two-day disciplinary hearing, the State Board of Nursing found Appellant violated several statutes and Board rules and revoked Appellant’s professional nursing license for two years. Appellant subsequently filed a petition for de novo judicial review in the district court. The district court concluded that it would not rehear the evidence presented to the Board and, after finding “competent evidence” on the record to support the Board’s findings, affirmed the Board’s decision to revoke Appellant’s license. The Supreme Court vacated the district court’s judgment, holding that the court erred in its interpretation and application of “de novo judicial review.” Remanded. View "Zablotny v. State Bd. of Nursing" on Justia Law

Plaintiffs involved in, or wishing to be involved in the “death care industry” challenged Pennsylvania’s Funeral Director Law, 63 Pa. Stat. 479.1 provisions that: permit warrantless inspections of funeral establishments by the state Board of Funeral Directors; limit the number of establishments in which a funeral director may have an ownership interest or practice the provision; restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment; require every funeral establishment to have a licensed full-time supervisor; require funeral establishments to have a “preparation room”; prohibit service of food in a funeral establishment; prohibit use of trade names by funeral homes; govern the trusting of monies advanced under pre-need contracts for merchandise; and prohibit payment of commissions. The district court found several provisions unconstitutional. The Third Circuit reversed: invalidation of the warrantless inspection scheme; holdings on dormant Commerce Clause challenges to certain provisions; conclusions that disputed provisions violate substantive due process; a ruling that the Board’s actions unconstitutionally impair private contractual relations with third parties; and invalidation of the ban on payment of commissions to unlicensed salespeople. The court affirmed that the ban on the use of trade names in the funeral industry violates First Amendment protections. The court noted that antiquated provisions are not necessarily unconstitutional. View "Heffner v. Murphy" on Justia Law

Starr, AIG's former principal shareholder, filed suit against the FRBNY for breach of fiduciary duty in its rescue of AIG during the fall 2008 financial crisis. The district court dismissed Starr's claims and Starr appealed. The suit challenged the extraordinary measures taken by FRBNY to rescue AIG from bankruptcy at the height of the direst financial crisis in modern times. In light of the direct conflict these measures created between the private duties imposed by Delaware fiduciary duty law and the public duties imposed by FRBNY's governing statutes and regulations, the court held that, in this suit, state fiduciary duty law was preempted by federal common law. Accordingly, the court affirmed the judgment of the district court. View "Starr Int'l Co. v. Federal Reserve Bank of New York" on Justia Law

Carpenter sued Flint, a councilwoman and the mayor, based on Carpenter’s termination from his position as Director of Transportation, asserting age and political discrimination, breach of contract, wrongful discharge, gross negligence, defamation, and invasion of privacy. Defendants argued that the complaint failed to identify which claims were alleged against which defendants, and that the allegations were “excessively esoteric, compound and argumentative.” Carpenter did not respond by the court’s deadline, and about five weeks later, a stipulated order entered, permitting Carpenter to file an amended complaint by April 21, 2011. Counsel manually filed an amended complaint on May 20, 2011, violating a local rule requiring electronic filing. The clerk accepted the filing, but issued a warning. Carpenter failed to timely respond to a renewed motion to strike. Carpenter responded to a resulting show-cause order, but failed to abide by local rules. Another warning issued. Carpenter’s response to a second show-cause order was noncompliant. The court warned that “future failure to comply … will not be tolerated.” After more than five months without docket activity, the court dismissed. The Sixth Circuit reversed. Defendants bore some responsibility for delays and the length of delay does not establish the kind of conduct or clear record warranting dismissal; lesser sanctions were appropriate. View "Carpenter v. City of Flint" on Justia Law

Petitioner, an energy trader, challenged FERC's order to pay a $50,000 civil penalty because petitioner had made false statements and material omissions in forms he filed with the Commission and a market operator the Commission regulates. The court agreed with FERC that petitioner's admissions supported summary disposition without a hearing; because petitioner's actions were worse than careless, FERC reasonably concluded that he violated Market Behavior Rule 3; petitioner's arguments under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., were without merit; and petitioner failed to show that FERC increased his penalty to promote general deterrence. Accordingly, the court denied the petition for review. View "Kourouma v. FERC" on Justia Law