Justia Professional Malpractice & Ethics Opinion Summaries

Day was indicted for conspiracy to commit wire fraud after participating in a fraudulent “credit repair” scheme. The government offered Day a plea deal that would have yielded a probable sentencing range of 51-63 months’ imprisonment. Day’s federal defender advised him to accept the deal. His father urged him to consult a private lawyer—an acquaintance with no experience in criminal law. That lawyer brought in an attorney experienced in federal criminal law. The two told Day that he was not guilty and should reject the offer. Day hired the two lawyers. The federal defender withdrew and offered to make her file available. The government extended the same offer six weeks before trial. Though they had not yet reviewed the case materials, Day’s new lawyers advised him to reject it. Day declined the deal. At the final pretrial hearing, Day again rejected the plea offer. The lawyers later told Day he would lose at trial. Day told them to get the best deal they could. They instead advised him to throw himself on the mercy of the court.Day pleaded guilty without an agreement, facing a sentencing range of 87-108 months. The district judge imposed a 92-month sentence. Day sought relief under 28 U.S.C. 2255, arguing that his attorneys were constitutionally ineffective. The Seventh Circuit vacated. The government conceded the deficient-performance element of Day’s Sixth Amendment claim. The facts set forth in his motion, if proven, could establish prejudice. View "Day v. United States" on Justia Law

In 2009, D. was delivered at Sharon Hospital by Dr. Gallagher and sustained an injury, allegedly causing her shoulder and arm permanent damage. In 2010-2011, preparing to file D.’s malpractice case, counsel requested records from Sharon and Gallagher, limited temporally to the delivery. Counsel believed that Gallagher was privately employed. Sharon was private; Gallagher was listed on the Sharon website. Counsel did not discover that Gallagher was employed by Primary Health, a “deemed” federal entity eligible for Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), malpractice coverage. D.'s mother had been Gallagher's patient for 10 years and had visited the Primary office. In contracting Gallagher, counsel used the Primary office street address. Gallagher’s responses included the words “Primary Health.” The lawsuit was filed in 2016; Pennsylvania law tolls a minor plaintiff’s action until she turns 18.The government removed the suit to federal court and substituted the government for Gallagher. The district court dismissed the suit against the government for failure to exhaust administrative remedies under the FTCA. The case against Sharon returned to state court. After exhausting administrative remedies, counsel refiled the FTCA suit. The Third Circuit affirmed the dismissal of the suit as untimely, rejecting a claim that D. was entitled to equitable tolling of the limitations period because counsel had no reason to know that Gallagher was a deemed federal employee or that further inquiry was required. D. failed to show that she diligently pursued her rights and that extraordinary circumstances prevented her from timely filing. View "D.J.S.-W. v. United States" on Justia Law

The applicable standard of proof for the elements of causation and damages in a "settle and sue" legal malpractice action is the preponderance of the evidence standard. In this case, defendant, the attorney, contends that the element of causation and damages in a "settle and sue" legal malpractice case must be proven to a legal certainty, and that the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence.The Court of Appeal explained that no published legal malpractice case using the term "legal certainty" expressly states the default burden of proof is replaced by a standard higher than preponderance of the evidence. Therefore, the court held that the term "legal certainty" is ambiguous and the court resolved the ambiguity by interpreting the statement that a plaintiff must present "evidence showing to a legal certainty that" the alleged breach of duty caused an injury as simply referring to the degree of certainty inherent in the applicable burden of proof. View "Masellis v. Law Office of Leslie F. Jensen" on Justia Law

Vernon Walters was injured in a work-related incident in October 2006; the vehicle he was driving was struck by an oncoming train. After receiving workers’ compensation benefits, he and his wife, Donyell Walters, filed a third-party claim against the company operating the train involved in the collision, Kansas City Southern Railway Company (KCSR). The Walterses hired the Parsons Law Firm to represent them in their suit, and Tadd Parsons took the case. The Walterses’ lawsuit against KCSR was ultimately dismissed with prejudice in September 2010 for, among other reasons, failure to prosecute, failure to comply with discovery obligations and fraud upon the court. Tadd never told the Walterses that their case had been dismissed and led them to believe their case was ongoing. Three years after the case had been dismissed, Tadd admitted he fabricated a settlement offer from KCSR in the amount of $104,000 and advised the Walterses to accept the offer, which they did. When eight months passed after Tadd informed the Walterses about the fabricated settlement, the Walterses demanded to meet with Jack Parsons, the other general partner at the Parsons Law Firm. Jack offered the Walterses $50,000 to settle any claims they may have had against Tadd based on his conduct in representing them in the KCSR lawsuit. The Walterses refused Jack’s offer and then filed a claim against Tadd, Jack and the Parsons Law Firm, alleging claims of fraud, defamation, negligent representation, negligent and intentional infliction of emotional distress and punitive damages. The trial court granted partial summary judgment for the Walterses on the matter of liability, finding that Tadd and the Parsons Law Firm were liable for fraud and intentional infliction of emotional distress. The court then held a jury trial on damages. The jury verdict awarded the Walterses $2,850,002 in compensatory damages, which exceeded what the Walterses had demanded in compensatory damages in their complaint and in their motion to set damages. Finding the jury’s verdict shocked the conscience, the court remitted the damages to $1,034,666.67 in a second amended final judgment. Parsons appealed to the Mississippi Supreme Court, and the Walterses cross-appealed. The Supreme Court determined the trial court did not abuse its discretion by excluding irrelevant evidence about the underlying KCSR lawsuit because the value of the lawsuit had no bearing on the damages the Walterses sustained due to Tadd Parsons’s and the Parsons Law Firm’s fraud and IIED. Further, the Court determined the remitted verdict’s award of damages was excessive and not supported by substantial evidence. The trial court was therefore affirmed in part, reversed in part, and the matter remanded for a new trial on damages. View "Parsons v. Walters" on Justia Law

The Supreme Court affirmed the decision of the court of appeals affirming the circuit court's grant of summary judgment in favor of Defendant, Plaintiff's former criminal defense attorney, on Plaintiff's legal malpractice claim, holding that nothing about Plaintiff's case warranted developing an exception to the actual innocence rule.The actual innocence rule requires a criminal defendant who brings a legal malpractice action against his defense attorney to establish that the defendant did not commit the crime of which he was convicted. Plaintiff conceded that he was guilty but argued that Wisconsin courts should create an exception to the actual innocence rule. The circuit court declined to adopt a novel exception to prevailing law, applied the actual innocence rule, and granted summary judgment for Defendant. The court of appeals affirmed. The Supreme Court affirmed, holding (1) Plaintiff failed to satisfy his burden of establishing a compelling reason to change existing law; and (2) because Plaintiff conceded guilt, his claim of legal malpractice was legally barred. View "Skindzelewski v. Smith" on Justia Law

A police officer applied for a Permanent Fund Dividend (PFD) for several years when he was not eligible to receive one. Following an investigation, the Executive Director of the Alaska Police Standards Council petitioned the Council to revoke the officer’s police certificate on the ground that he lacked good moral character. An administrative law judge recommended against revoking the certificate, finding that the officer’s mistakes were not sufficient to demonstrate dishonesty or a lack of respect for the law. The Council, however, concluded that the officer’s hearing testimony - that he would fill out the applications in the same way if he had to do it over again - showed dishonesty and a lack of respect for the law, and it therefore revoked his certificate. The superior court agreed with the administrative law judge’s analysis of the evidence and the law and reversed the Council’s decision. The Council appeals. The Alaska Supreme Court determined the evidence disproportionately supported the finding of the administrative law judge that the police officer’s PFD applications and hearing testimony, while mistaken about the law, were not sufficient to raise substantial doubts about the officer’s good moral character. The Court affirmed the superior court's decision reversing the Council's revocation of the police certificate. View "Alaska Police Standards Council v. Maxwell" on Justia Law

Plaintiffs filed a legal malpractice case arising out of the failure of two sets of lawyers associated with two different law firms, Westerman, Hattori, Daniels & Adrian, LLP (Westerman) and Kratz, Quintos & Hanson, LLP (Kratz), to file necessary documents in plaintiffs' patent case, allegedly resulting in plaintiffs' loss of that case. The complaint alleged four counts against defendants: Count I against both defendants for the original malpractice, Count II alleging that Westerman negligently gave legal advice after the original decision in the patent case issued and Counts III and IV alleging that advice Kratz gave regarding the malpractice case against Westerman led to the loss of the Count I claim against both defendants through the operation of the statute of limitations.The DC Circuit affirmed the district court's dismissal of Count II of the Second Amended Complaint where the district court did not abuse its discretion by finding that plaintiffs waived any claim for damages arising from the Count II allegations. The court also affirmed the district court's grant of summary judgment on Counts III and IV of the Second Amended complaint where plaintiffs failed to establish that Armstrong's advice was the proximate cause of its injuries. View "Seed Company Limited v. Westerman, Hattori, Daniels & Adrian, LLP" on Justia Law

The Supreme Court affirmed the ruling of the district court that Plaintiff's post-judgment motion was timely, holding that the district court's order of dismissal did not constitute a separate judgment under Utah R. Civ. P. 58A(1), and therefore, the judgment was not complete and entered until 150 days after the clerk recorded the order of dismissal.This appeal stemmed from a legal malpractice claim. The district court dismissed the complaint. On April 10, the district court signed the proposed order of dismissal with prejudice. On May 9, Plaintiff filed a post-judgment motion requesting various forms of relief. Defendant argued that the motion was untimely because it was filed more than twenty-eight days after the April 10 order. The district court granted Plaintiff's motion and vacated the April 10 order, concluding that the order was not a separate judgment under Rule 58A(a) and therefore did not start the time to file post-judgment motions. The Supreme Court affirmed, holding (1) the district court did not err in concluding that the April 10 order was not a separate judgment pursuant to Rule 58A(a); and (2) because the April 10 order did not constitute an "entry of judgment" that started the time to file post-judgment motions, Plaintiff's post-judgment motion was timely. View "Griffin v. Snow Christensen & Martineau" on Justia Law

Wittenberg and Daniel are the co-owners of Hertzel Enterprises LLC. Attorney Peretz formerly represented Hertzel and now represents Daniel. Wittenberg filed suit asserting claims, individually and derivatively on behalf of Hertzel, against defendants including Daniel and Peretz. Wittenberg alleged that Peretz breached his fiduciary duties of loyalty, care, and confidentiality by representing clients with interests adverse to those of Hertzel; using Hertzel’s confidential business information in his representation of clients with adverse interests; and conspiring with Daniel and others to dismiss with prejudice a cross-complaint that Hertzel had previously filed against Daniel.Peretz filed a special motion to strike under the anti-SLAPP law (Code Civ. Proc. 425.16). The trial court declined to strike the causes of action for breach of fiduciary duty and conspiracy, finding they arose not out of Peretz’s litigation conduct but the alleged breaches of his professional obligations. The court of appeal reversed, finding that Peretz carried his burden to show the two causes of action arise, in part, from protected activity, so that the burden shifted to Wittenberg to show minimal merit on her claims based on the allegation of protected activity, which she failed to do. The act underlying Peretz’s liability for this particular allegation is protected litigation conduct. View "Wittenberg v. Bornstein" on Justia Law

In November 2007, Marten performed surgery on Doe’s face and neck. In June 2008, Doe sent Marten a letter stating she was considering suing him and demanded that he preserve her documents, files, and photos. In November, Doe’s attorney served Marten with a written demand for arbitration pursuant to a Physician-Patient Arbitration Agreement. In January 2009 Marten’s counsel responded, identifying an arbitrator, without questioning the origin of the agreement or disputing that Marten had signed it. The applicable one-year statute of limitations ran in March 2009. (Code Civ. Proc.340.5) In May 2009, Merten subpoenaed and obtained the records of Dr. Daniel, whom Doe earlier consulted. Located within Daniel’s records was a signed arbitration agreement. Nearly three years later, Marten’s counsel first confronted Doe with the arbitration agreement and refused to continue with the arbitration.Doe sued for medical malpractice and medical battery. The court overruled dismissal motions, finding triable issues as to whether equitable tolling or equitable estoppel disallowed the statute of limitations defense. The court imposed sanctions after hearing evidence that Marten destroyed electronically stored information. After the close of evidence, the trial court dismissed the medical battery claim. On the malpractice claim, the jury awarded over $6.3 million in damages. The court then found the malpractice claim time-barred. The court of appeal reversed in part. The medical malpractice claim was not time-barred because Merten’s conduct actually and reasonably induced Doe to refrain from filing a timely action. View "Doe v. Marten" on Justia Law