Justia Professional Malpractice & Ethics Opinion Summaries

Articles Posted in Legal Ethics
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The Supreme Court affirmed the judgment of the district court granting summary judgment in favor of in favor of Defendants and dismissing Plaintiffs' legal malpractice action on the grounds that Defendants did not breach any duty of care to Plaintiffs, holding that the district court did not err.In 2017, Plaintiffs, various liquor stores in Whiteclay, sought to renew multiple liquor licenses, but when the cause was appealed, the Supreme Court determined that it did not have jurisdiction. Plaintiffs then brought this action against their counsel, alleging legal malpractice. The district court granted summary judgment for Plaintiffs. The Supreme Court affirmed, holding that the district court did not err in concluding that, as a matter of law, Defendants did not breach the applicable standard of care. View "Kozal v. Snyder" on Justia Law

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The Supreme Court granted a petition sought by the Arkansas Judicial Discipline and Disability Commission for expedited consideration and report of uncontested sanction following its investigation of complaints against Pope County District Court Judge Don Bourne, holding that Judge Bourne's conduct warranted sanctions.Several complaints involving two counts were filed against Judge Bourne involving his conduct toward unrepresented litigants. Judge Bourne did not contest either count, waived a formal disciplinary hearing, and accepted the investigatory panel's recommended sanction of suspension without pay for ninety days, with seventy-five days held in abeyance for one year. The commission accepted the recommended sanction. The Supreme Court suspended Judge Bourne from the bench without pay for ninety days with seventy-five days held in abeyance if he agrees to, among other things, never again to hold judicial office after his current term expires, ordering that the mandate shall issue immediately. View "Arkansas Judicial Discipline & Disability Commission v. Bourne" on Justia Law

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The Seventh Circuit affirmed the judgment of the district court concluding that the terms of a settlement resulted in a de facto assignment of a corporation's theoretical legal malpractice claim to Amit Shah by using the corporation as his alter ego, holding that there was no error.In 2013, Shah and another minority shareholder of Duro, Inc. brought this action against Duro and its third shareholder, alleging money laundering and racketeering. In 2015, Plaintiffs added a shareholder derivative claim of legal malpractice, nominally on behalf of Duro, against a law firm and its attorneys (May Oberfell), who had represented Defendants in the case. In 2017, Plaintiffs settled their claims, preserving any claims Duro might have against May Oberfell. Shah subsequently took effective control of Duro and transferred all of Duro's assets except the legal malpractice claim. Thereafter, Shah, through Duro, filed a complaint against May Oberfell. The district court granted summary judgment for May Oberfell, concluding that the legal malpractice claim had undergone a "de facto" assignment, and therefore, the claim was barred under Indiana law. The Seventh Circuit affirmed, holding that May Oberfell was entitled to summary judgment. View "Duro, Inc. v. Walton" on Justia Law

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Wang sued her former attorney Nesse, alleging professional malpractice in his representation of Wang in her marital dissolution action. Following Nesse’s death, his estate moved for summary judgment on the grounds that Wang’s complaint, filed on December 21, 2015, was barred by the one-year statute of limitations, Code of Civil Procedure section 340.6. According to Nesse’s estate, although Wang and Nesse filed a substitution of attorney form on December 30, 2014, Nesse’s representation of Wang had actually ended earlier, on December 3 or December 17 at the latest, when Wang “discharged” Nesse or “consented” to his withdrawal. The trial court agreed and granted the motion. The court of appeal reversed. There is a triable issue of material fact as to whether Nesse continued to represent her on December 21, 2014, so Nesse’s estate failed to establish that the statute of limitations bars her complaint as a matter of law. View "Wang v. Nesse" on Justia Law

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Lawyers brought claims against schools under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400. After the claims failed, the schools sought their attorney’s fees from the lawyers under the IDEA’s fee-shifting provision. The School Districts alleged that, during the administrative process, the attorneys presented sloppy pleadings, asserted factually inaccurate or legally irrelevant allegations, and needlessly prolonged the proceedings. The lawyers asked their insurer, Wesco, to pay the fees. Wesco refused on the ground that the requested attorney’s fees fell within the insurance policy’s exclusion for “sanctions.”The Sixth Circuit affirmed summary judgment in favor of Wesco. The IDEA makes attorney misconduct a prerequisite to a fee award against a party’s lawyer, so the policy exclusion applied. The court noted that the legal community routinely describes an attorney’s fees award as a “sanction” when a court grants it because of abusive litigation tactics. View "Wesco Insurance Co. v. Roderick Linton Belfance, LLP" on Justia Law

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For about 10 years Victaulic and three of its insurers, members of the American Insurance Group (AIG), have been engaged in litigation. One case is this lawsuit filed by Victaulic in 2012; in 2013, the Pillsbury law firm became counsel for Victaulic and has represented it since, ultimately winning a $56 million judgment. In 2018, that judgment was reversed based on a combination of errors by the trial judge. Following remand, Victaulic filed an amended complaint; the vigorous litigation continued. In 2021 the insurers learned that two attorneys who had done work for a claims-handling arm of AIG had recently joined the Pillsbury firm, about six years after they left employment at the earlier firm. The insurers moved to disqualify the lawyers and the Pillsbury firm, generating thousands of pages of pleadings, declarations, and exhibits, and two hearings.The trial court concluded that the insurers failed to meet their burden. The court of appeal affirmed. There was no showing that the two attorneys had any confidential information and no “direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation.” View "Victaulic Co. v. American Home Assurance Co." on Justia Law

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While driving a forklift at work, Lori Chandler was hit by another forklift and injured. She retained Turner & Associates to file a workers’ compensation claim. But Turner & Associates failed to file her claim within the statute of limitations. Adding to that, the firm’s case manager engaged in a year-and-a-half-long cover-up, which included false assurances of settlement negotiations, fake settlement offers, and a forged settlement letter purporting to be from Chandler’s former employer. Because of this professional negligence, Chandler filed a legal malpractice action. The only issue at trial was damages. The trial judge, sitting as fact-finder, concluded that Chandler had suffered a compensable work-related injury—an injury that caused her to lose her job and left her unemployed for nearly two years. Based on her hourly wage, the trial judge determined, had Turner & Associates timely filed Chandler’s workers’ compensation claim, Chandler could have reasonably recovered $50,000 in disability benefits. So the trial judge awarded her $50,000 in compensatory damages. The trial judge also awarded Chandler $100,000 in punitive damages against the case manager due to her egregious conduct. The Court of Appeals affirmed the punitive-damages award. But the court reversed and remanded the compensatory-damages award. Essentially, the Court of Appeals held that Chandler had failed to present sufficient medical evidence to support a $50,000 workers’ compensation claim. The Mississippi Supreme Court reversed the appellate court: "Were this a workers’ compensation case, we might agree with the Court of Appeals. But this is a legal malpractice case. And part of what Chandler lost, due to attorney negligence, was her ability to prove her work-related injury led to her temporary total disability. ... the Court of Appeals erred by applying exacting statutory requirements for a workers’ compensation claim to Chandler’s common-law legal malpractice claim." The Court reversed on the issue of compensatory damages and reinstated the trial judge’s $50,000 compensatory-damages award. Because this was the only issue for which Chandler sought certiorari review, it affirmed the remainder of the Court of Appeals’ decision, which affirmed the punitive-damages award but reversed and remanded the grant of partial summary judgment against attorney Angela Lairy in her individual capacity. View "Turner & Associates, PLLC, et al. v. Chandler" on Justia Law

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In 1994, the Georgia Supreme Court approved State Bar of Georgia Formal Advisory Opinion (“FAO”) 94 -3, which addressed and provided guidance concerning former Standard of Conduct 47 in on whether a lawyer could properly contact and interview former employees of an organization represented by counsel to obtain information relevant to litigation against the organization. In 2000, the Supreme Court issued an order adopting the Georgia Rules of Professional Conduct (“GRPC”) found in Bar Rule 4-102 (d), which replaced the Standards of Conduct. The State Bar’s Formal Advisory Opinion Board (“Board”) determined that the substance and conclusion reached in FAO 94 -3 remained the same under the applicable GRPC. The Georgia Defense Lawyers Association (“GDLA”) raised concerns over FAO 20-1, contending that former employees fall within the “three types of agents or employees of a represented organization who may not be contacted on an ex parte basis by an opposing lawyer[.]” The Supreme Court retracted Formal Advisory Opinion 94-3 and approved Formal Advisory Opinion 20-1, with modifications. View "In re: Formal Advisory Opinion No. 20-1" on Justia Law

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Plaintiff filed various claims against his Defendants, his former attorneys, claiming breach of contract and professional negligence. He also alleges that Defendants failed to advise him of the state’s Anti-SLAPP statute before filing a complaint against a newspaper publisher. Ultimately plaintiff’s Anti-SLAPP claim drew a special motion to strike, which he lost. This, Plaintiff claimed, deprived him of discovery he intended to use in a disciplinary proceeding pending against him in the United Kingdom. In turn, Plaintiff asserts this caused him to lose his law license and suffer other financial harm. The trial court granted summary judgment in favor of Defendants and Plaintiff appealed.The Second Appellate District reversed. While Plaintiff’s damages claims were too speculative because they were based on the outcome of disciplinary proceedings in the U.K., the trial court erred in failing to consider Plaintiff’s other claimed damages. An attorney owes a duty of care to advise a client of foreseeable risks of litigation before filing a lawsuit on the client’s behalf. Here, Plaintiff presented a viable claim that, had Defendants advised him of the potential consequences of filing his Anti-SLAPP case, he would have elected not to file the claim. View "Mireskandari v. Edwards Wildman Palmer LLP" on Justia Law

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At issue in this post-conviction case was petitioner Steve Franke’s attempt to prove that his criminal trial counsel provided constitutionally inadequate and ineffective assistance by failing to object that an expert diagnosis of child sexual abuse was inadmissible in the absence of corroborating physical evidence. Although the objection would have been contrary to controlling Court of Appeals precedent at the time of petitioner’s 2001 criminal trial, the Oregon Supreme Court later held that the rules of evidence required exclusion of a diagnosis of sexual abuse if it was not based on physical evidence, effectively overruling the Court of Appeals precedent. To survive summary judgment, petitioner offered evidence that some criminal defense attorneys in 2001 viewed the Court of Appeals precedent as vulnerable, were raising the kind of challenge to sexual abuse diagnoses that ultimately succeeded, and were recommending that practice to other criminal defense attorneys. Petitioner contended the evidence would have allowed him to establish that the exercise of reasonable skill and judgment obligated his attorney to raise a similar objection, or at least that his attorney’s failure to raise the argument was the product of a failure to adequately prepare and familiarize himself with the state of the law. Both the post-conviction court and the Court of Appeals held that petitioner’s claim failed as a matter of law. The Supreme Court agreed with the Court of Appeals that the argument that ultimately succeeded in Southard was not so obviously correct in 2001 that the exercise of reasonable skill obligated attorneys to raise the argument, and petitioner’s evidence did not permit a different conclusion. But the Supreme Court disagreed that petitioner’s claim could be resolved on summary judgment; the evidence created genuine issues of material fact that, if resolved in petitioner’s favor, could establish the failure by petitioner’s attorney to raise a Southard-type challenge to the sexual abuse diagnosis was the product of an unreasonable failure to investigate and familiarize himself with the state of the law to the extent appropriate to the nature and complexity of the case. Accordingly, the Supreme Court reversed the lower courts' judgments and remanded for further proceedings. View "Jackson v. Franke" on Justia Law