Justia Professional Malpractice & Ethics Opinion Summaries

A patient filed a complaint concerning Dr. Dore, a Board-certified psychiatrist. The Board discovered suspected irregularities in Dore's prescription of controlled substances. Dore declined to answer questions. The Board served her with an investigative subpoena seeking medical records supporting the prescription of the controlled substances to a family member and with investigative interrogatories requesting information about the family member's treatment and employment with Dore. Dore refused to produce the records and objected to the interrogatories. Her family member objected to the subpoena.The Board sought an order compelling compliance and provided reports from the Controlled Substance Utilization Review and Evaluation System (CURES) database. A Board-certified psychiatrist opined it was necessary to obtain the family member’s medical records to evaluate whether Dore complied with the standard of care, noting an AMA ethics opinion counseling physicians against treating family members except in emergencies. Dore's expert, a psychiatrist and licensed California attorney, disagreed with the assertion that prescribing controlled substances to family members presumptively violates the standard of care. The family member explained his reason for seeking treatment from Dore, identifying the medications she prescribed, and describing the treatment she provided.The court of appeal affirmed the trial court, which ordered compliance, impliedly concluding the Board established good cause to justify the production of the family member’s private medical information. The Board had a compelling interest in investigating Dore’s allegedly improper conduct. View "Kirchmeyer v. Helios Psychiatry Inc." on Justia Law

Erica Fox appealed a circuit court's grant of summary judgment in favor of her former criminal-defense attorneys, Harold Hughston, III and Sheila Morgan. In 2016, Ronnie Credille murdered Fox's husband, Jason Fox. Credille shot Jason in the head as he entered the doorway of the residence that he shared with Fox and their children. Fox and Credille were alleged to have been involved in an adulterous relationship. A grand jury indicted Fox for capital murder on January 12, 2017. The trial court presiding over the criminal action declared Fox indigent and appointed Hughston and Morgan to represent her. Fox was convicted for capital murder, for which she received a life sentence without the possibility of parole. Fox contended that, at the conclusion of the sentencing hearing, she made it clear to her defense attorneys that she wanted to appeal her conviction and sentence and that they represented to her that a notice of appeal had been perfected. Despite that representation, there was no oral notice of appeal contained in the transcript of the sentencing hearing. The attorneys moved for a new trial on Fox's behalf; that motion was denied by operation of law approximately one month later. The trial court nevertheless held a hearing on the motion, in which the motion was formally denied. This denial ended up being void for the trial court's want of jurisdiction. Because the deadline by which Fox was required to file a written notice of appeal of her conviction and sentence was calculated from the date on which her motion for a new trial was denied by operation of law, her written notice of appeal was due to be filed on or before March 11, 2019. After the trial court denied Fox's motion for a new trial, the attorneys moved to withdraw from representing Fox. Fox received an appointed appellate counsel, Charlie Bottoms, who attempted to get the appeals court to reinstate the appeal or order a new sentencing hearing. Fox ultimately sued her trial attorneys for legal malpractice for not lodging the appeal at trial. The Alabama Supreme Court concluded Fox failed to demonstrate any statutory tolling provision applied in her case, therefore it granted the trial court's grant of summary judgment to the defense attorneys. View "Fox v. Hughston, et al." on Justia Law

Attorney Ali Muhammad Shamsiddeen appealed a trial court’s Order of Contempt and Order Denying Motion for Recusal. Michael Sorrell was convicted of one count of first degree murder and one count of felon in possession of a firearm. The Mississippi Court of Appeals reversed Sorrell’s conviction and remanded the case for a new trial. After numerous continuances, Sorrell’s new trial was scheduled for April 5, 2021. On the morning of trial, Sorrell’s then-counsel, Kevin Camp, failed to appear. Camp was terminated as defense counsel. On April 13, Shamsiddeen entered an appearance as counsel for Sorrell. By agreement of all parties, the trial was rescheduled for September 27. The trial court advised that no further continuances would be granted and that the case would proceed to trial on the 27th. On August 18, Shamsiddeen moved ore tenus for a continuance, which was denied. On August 31, Shamsiddeen filed a motion to continue trial. At the pretrial motion hearing on September 1, Shamsiddeen reasserted his motion to continue. The trial court denied the motion. On September 21, Shamsiddeen contacted the court administrator and advised that he had the coronavirus and would not be able to appear at the pretrial conference scheduled for September 22. Shamsiddeen was instructed to provide to the trial court documentation “from a healthcare provider that counsel [wa]s infected with the coronavirus and that he [wa]s symptomatic not asymptomatic.” On the morning of September 22, Shamsiddeen did not appear in person or virtually at the pretrial conference. Later that morning, Shamsiddeen emailed the court administrator a statement from a medical provider dated September 21. The statement not include a diagnosis or confirm any medical condition, only that the nature of the illness or injury was “medical” and that Shamsiddeen would “be able to return to work/school on 10-11-21.” On the day before trial, Shamsiddeen sent an email to the trial court noting that he was quarantining; he did not appear in court for trial. Before the jury panels were released, Shamsiddeen had someone from the City of Jackson’s legal department hand deliver a medical statement, dated September 27, identical to the September 21 medical statement with the exception of the word “quarantine” added to the nature of the illness or injury. The trial court thereafter entered the orders of contempt at issue here. The Mississippi Supreme Court found no reversible error in the orders and affirmed them. View "In Re: Ali M. Shamsiddeen" on Justia Law

Plaintiff filed a lawsuit against Lewisville Independent School District (“LISD”) and seven school board members, alleging that the district’s at-large election system violated Section 2 of the Voting Rights Act (“VRA”) and seeking injunctive relief. The district court determined that Plaintiff lacked standing to bring his Section 2 claim because he is white. The district court then granted Defendants’ motion for sanctions against Plaintiff, his attorneys, and their law firm based on the findings that Plaintiff’s lawsuit was frivolous under 52 U.S.C. Section 10310(e) and his attorneys multiplied proceedings unreasonably and vexatiously under 28 U.S.C. Section 1927.   
The Fifth Circuit vacated the district court’s sanctions order and remanded to determine the extent to which the order is footed upon specific contemptuous conduct in the attorneys’ prosecution of the case. The court held that Plaintiff’s lawsuit did not merit sanctions. The court concluded that sanctions against Plaintiff were unwarranted because precedent in the circuit did not squarely foreclose his legal argument and because he sought to extend existing law. Critically, LISD points to no precedent in the circuit considering whether a voter in his position has standing under the VRA, let alone “squarely controlling precedent.” Further, as Plaintiff’s s lawsuit was not frivolous and relied on an “unsettled legal theory,”  his attorneys cannot be sanctioned under Section 1927 simply for filing the action. View "Vaughan v. Lewisville Indep Sch Dist" on Justia Law

Peraica represented Dordevic in her Chapter 7 bankruptcy proceeding and submitted a Statement of Financial Affairs (Rule 2016 disclosure) in which he reported that Dordevic had paid him $5,000. As the Trustee learned during discovery, Dordevic had actually paid Peraica $21,500. The Trustee informed Peraica that he needed to file an updated Rule 2016 fee disclosure. Peraica instead sent the Trustee an informal accounting document listing $21,500 in fees. The Trustee responded: “The Rule 2016 disclosures actually need to be filed with the Court” by submitting “an official form.” Peraica repeatedly ignored the Trustee’s reminders. The Trustee filed a motion, 11 U.S.C. 329, to examine the fees. Peraica failed to respond; the Trustee then requested that all fees be forfeited. The bankruptcy court granted the motion.The district court and Seventh Circuit affirmed. Beyond Peraica’s brazen disregard of the Trustee’s advice, Peraica’s proffered explanation for not updating his fee disclosure lacking, if not false. Peraica had been involved in more than 350 bankruptcy cases in the Northern District of Illinois alone. The bankruptcy court ordered Peraica to disgorge all past fees as a penalty for his blatant lack of compliance with his obligations. There is no leeway for partial or incomplete disclosure. View "Peraica v. Layng" on Justia Law

BrunoBuilt, Inc., was constructing a custom home on a vacant lot in 2016 when a landslide occurred beneath the Terra Nativa subdivision in the Boise foothills. Following damage to the lot, BrunoBuilt filed a professional negligence suit against numerous engineers and engineering firms involved in the construction of the subdivision, arguing that they failed to identify preexisting landslide conditions and other geological circumstances that made residential development unsafe at this site. In the fall of 2018, BrunoBuilt discovered additional damage to the finished custom home itself. It then brought suit against additional defendants, including Briggs Engineering, Inc., and Erstad Architects. Briggs Engineering moved for summary judgment, which the district court granted. The court concluded that BrunoBuilt’s action was time barred by the two-year statute of limitations under Idaho Code section 5-219(4). BrunoBuilt appealed this decision, arguing that the malpractice claim did not begin to accrue until there was damage to the custom home, rather than just the land. To this the Idaho Supreme Court disagreed with BrunoBuilt’s analysis and affirmed the district court that BrunoBuilt’s claim was time barred. View "Brunobuilt, Inc. v. Briggs Engineering, Inc." on Justia Law

The Supreme Court rescinded an earlier decision to answer a certified question of law certified by the United States District Court for the Eastern District of Arkansas, holding that certification was improvidently granted.Plaintiff filed suit in the district court seeking to recover corrective fees it incurred in the underlying case. The district court concluded that Plaintiff could not establish proximate cause under Arkansas law and denied the motion. The United States Court of Appeals for the Eighth Circuit reversed and remanded the case for further proceedings. On remand, the district court certified a question of law regarding proximate cause in a legal malpractice action and corrective fees. The Supreme Court accepted the question of law. The Court then exercised its discretion to rescind its decision to answer the questioned question because the Eighth Circuit had already addressed the issue involved in the certified question presented to the Supreme Court. View "Gerber Products Co. v. Mitchell, Williams, Selig, Gates & Woodyard, PLLC" on Justia Law

With new counsel, a client sues his former attorneys, alleging they accepted $27,500 in fees from him but did not perform the promised legal services. New counsel engages in communications via email and telephone with the former attorneys’ representative and discusses the possible filing of a State Bar claim. The former attorneys file a cross-complaint against the client and his new counsel for extortion, among other claims. The client and his new counsel file an anti-SLAPP motion, which the trial court granted.   The Second Appellate District affirmed. The court found that none of the communications presents extortion as a matter of law. The court concluded that cross-defendants made the threshold showing that the cross-complainants’ complaint is based on protected activity and thus subject to the anti-SLAPP statute. The court found that the cross-complainants did not carry their burden of showing a probability of overcoming cross-defendants’ litigation privilege defense. Accordingly, the trial court properly granted the special motions to strike the cross-complaint. View "Geragos v. Abelyan" on Justia Law

Plaintiffs sued Defendant and the law firm (collectively, the lawyers) for legal malpractice on the theory that the lawyers in drafting the LLC operating agreements did not adhere to the intent of their mother’s trust. The lawyers moved for summary judgment on three grounds—namely, (1) they owed Plaintiffs no duty of care, (2) Plaintiffs’ claim was time-barred, and (3) the parties had too contingent of an interest to have standing to sue. The trial court granted summary judgment. Specifically, the court ruled that Plaintiffs had presented “no evidence of decedent’s” intent to disinherit specific grandchildren from obtaining membership interests in the LLCs, such that the lawyers owed Plaintiffs no duty to effectuate that intent.   The Second Appellate District affirmed. The court concluded that the lawyers did not owe Plaintiffs a duty to draft the LLC operating agreements in a way that disinherited decedent’s grandchildren because decedent’s intent to disinherit the specific grandchildren from being assigned any interest in the LLCs was not, as a matter of law, clear, certain or undisputed. Further, the court wrote that because summary judgment was properly granted due to the absence of any duty running from the lawyers to Plaintiffs, the court does not have occasion to reach the alternative grounds for affirmance (namely, that Plaintiffs’ claims are time-barred or that the parties lack standing.) View "Gordon v. Ervin Cohen & Jessup LLP" on Justia Law

The Supreme Court vacated the opinion of the intermediate court of appeals (ICA) reversing the order of the circuit court granting summary judgment in favor of Defendant in this insurance broker malpractice case, holding that the circuit court and the ICA majority incorrectly analyzed Defendant's burden regarding the causation element.Plaintiff brought negligence and negligent malpractice claims against Defendant. In the original proceedings, judgment was granted for Plaintiff. The ICA remanded the case to the circuit court to include previously excluded testimony. On remand, the circuit court granted summary judgment for Defendant. The ICA reversed. The Supreme Court vacated the ICA"s order and remanded the case to the circuit court for further proceedings, holding (1) to negate the causation element of the negligence and negligent malpractice claims against it Defendant would need to demonstrate that Plaintiff's insurer (Insurer) would not have been legally obligated to advance Plaintiff's defense costs even if Plaintiff's grand jury subpoena matter were timely tendered to Insurer; and (2) the lower courts incorrectly analyzed Defendant's burden regarding the causation element, requiring remand. View "Pflueger, Inc. v. AIU Holdings, Inc." on Justia Law