Justia Professional Malpractice & Ethics Opinion Summaries

Plaintiff-appellant Nancy Lee hired Attorney William Hanley to represent her in a civil suit. After the litigation settled, Lee sought a refund of unearned attorney fees and unused expert witness fees she had advanced to Hanley. Not having received a refund, Lee hired Attorney Walter Wilson and terminated Hanley. Attorney Hanley thereafter refunded certain expert witness fees, but no attorney fees. More than a year after hiring Wilson, Lee filed a lawsuit against Hanley seeking the return of the unearned fees. Hanley filed a demurrer to Lee’s second amended complaint, based on the one-year statute of limitations contained in Code of Civil Procedure section 340.6. The court sustained the demurrer and dismissed the action with prejudice. Lee appealed. Upon review, the Court of Appeal held that to the extent a claim is construed as a wrongful act not arising in the performance of legal services, "such as garden variety theft or conversion, section 340.6 is inapplicable. . . . Here, the facts alleged in Lee’s second amended complaint could be construed as giving rise to a cause of action for the theft or conversion of an identifiable sum of money belonging to her. This being the case, we cannot say that Lee’s second amended complaint demonstrates clearly and affirmatively on its face that her action is necessarily barred by the section 340.6 statute of limitations." Because this action had not reached a point where the court could determine whether the wrongful act in question arose in the performance of legal services, and thus, whether or not section 340.6 applied, the demurrer should not have been sustained. View "Lee v. Hanley" on Justia Law

Plaintiff filed a complaint against a law firm and its attorneys (Defendants), alleging that Defendants committed legal malpractice when they advised Plaintiff, their former client, to sign a release with an insurer regarding his underlying suit arising from a vehicle accident. Defendants served discovery requests on Plaintiff, but Plaintiff’s responses to the requests for admission were not timely. Defendants moved for summary judgment based in large part on the fact that the requests for admission had not been timely answered and deemed admitted. Plaintiff filed a motion to withdraw or amend his admissions. The district court denied Plaintiff's motion, concluding that while granting Plaintiff’s motion would subserve the presentation of the merits of his case, it would prejudice Defendants. The court then granted summary judgment for Defendants. The Supreme Court reversed, holding that the district court abused its discretion by refusing to allow Plaintiff to withdraw or amend his admissions, as nothing in the record showed Defendants suffered prejudice sufficient to bar amendment of Plaintiff’s admissions. Remanded.View "Bates v. Anderson" on Justia Law

The U.S. District Court for the Northern District of Georgia certified a question of Georgia law to the Georgia Supreme Court. As the receiver of the Buckhead Community Bank, the Federal Deposit Insurance Corporation sued nine former officers and directors of the bank, alleging that they were negligent with respect to the making of loans, which, according to the FDIC, led the bank, to suffer nearly $22 million in losses. The defendants moved to dismiss the lawsuit, arguing that the business judgment rule relieved officers and directors of any liability for ordinary negligence. The FDIC responded that such a business judgment rule is no part of the common law in Georgia, and even if it were, it did not apply to bank officers and directors, insofar as the statutory law in Georgia explicitly requires bank officers and directors to exercise ordinary diligence and care. Unable to "discern clear and controlling precedent the federal district court asked: "[d]oes the business judgment rule in Georgia preclude as a matter of law a claim for ordinary negligence against the officers and directors of a bank in a lawsuit brought by the FDIC as receiver for the bank?" The Georgia Court answered that question in the negative. View "Fed. Deposit Ins. Corp. v. Loudermilk" on Justia Law

Appellant retained Attorney to represent him in several actions, including an action to obtain disability benefits from the city of Omaha. Appellant’s application for benefits was denied. Before an appeal or request for a rehearing were filed, Appellant terminated his relationship with Attorney. Appellant then filed suit against Attorney for professional malpractice. The district court granted Attorney's motion for summary judgment, concluding that Appellant never directed Attorney to file an appeal and that Attorney had properly preserved the record such that an appeal would have been possible. The Supreme Court affirmed, holding (1) Appellant’s contention that Attorney failed to investigate and preserve the record for appellate purposes was without merit; (2) Appellant failed to produce evidence to show Attorney's actions in failing to file an appeal constituted neglect or that Appellant was harmed; and (3) the district court did not err in refusing to allow expert testimony on the issue of whether Attorney committed malpractice.View "Harris v. O'Connor" on Justia Law

Respondent R. Eric Bloomfield, DVM, appealed a decision of the New Hampshire Board of Veterinary Medicine which reprimanded respondent based upon its findings that he failed to do a physical examination of a puppy prior to demonstrating a restraint technique, that his restraint of the puppy was excessive, and that he failed to respect the opinion of the puppy's owners. A couple took their five-month old puppy to respondent for a routine checkup. Respondent determined that the male puppy was "dominant" and proceeded to demonstrate a dominance-submission technique, which included picking the dog up by the scruff of the neck and pinching his snout. The dog responded by urinating on the examination table, then defecating, struggling briefly, then laid still. The dog was pronounced dead later that day. The couple filed a formal complaint against respondent regarding his treatment of their puppy. The Board found that respondent did not engage in misconduct, but that he failed to respect the couple's opinion to demonstrate the submission technique. On appeal, respondent argued that the evidence did not support the Board’s finding that he failed to do a physical examination of the puppy prior to demonstrating a restraint technique, and that his restraint of the puppy "was excessive, especially given the breed." He also argued that RSA 332-B:14, II(c) was "impermissibly vague," and, therefore, violates his procedural due process rights. Finally, he argued that the Board erred by not requiring expert testimony on the standard of care. Finding no reversible error, the Supreme Court affirmed. View "In the Matter of R. Eric Bloomfield, DVM " on Justia Law

Plaintiffs brought a breach of contract action against H&S Builders, Inc. and retained Defendants to defend them in the lawsuit. Plaintiffs fired Defendants during the proceedings and hired a new attorney to assist them. The case was eventually settled. Plaintiffs then commenced this legal malpractice case against Defendants, claiming that Defendant failed properly to represent their interests in the action brought against H&S. The circuit court entered a default judgment as to liability in favor of Plaintiffs but concluded that Plaintiffs failed to prove they suffered any damages that were proximately caused by Defendants’ negligent representation. The Supreme Court affirmed, holding that the circuit court did not clearly err in finding that Plaintiffs failed to prove damages sustained as a proximately result of Defendants’ conduct.View "Peterson v. Issenhuth" on Justia Law

E.Y., a child, was diagnosed with diplegic cerebral palsy. His mother alleges that E.Y.’s illness resulted from medical malpractice by the federally-funded Friend Family Health Center, where she received her prenatal care, and the private University of Chicago Hospital, where she gave birth. Federal law makes a suit against the Center a suit against the United States under the Federal Tort Claims Act (FTCA) that had to be filed within the FTCA’s two-year statute of limitations, 28 U.S.C. 2401(b). The district court granted summary judgment for the government, finding that the suit was filed about two weeks too late. The mother argued that although she was aware she might have a claim against the University Hospital more than two years before filing this suit, she remained unaware that the Friend Center might be involved until she received a partial set of medical records on December 14, 2006, making her suit timely. The Seventh Circuit reversed. A reasonable trier of fact could find that Ms. Wallace the mother was unaware and had no reason to be aware of the Friend Center’s potential involvement in her son’s injuries until less than two years before she filed suit. View "E. Y., v. United States" on Justia Law

Plaintiff filed suit against her former law firm alleging that decisions made by the firms' directors who administered the retirement plan breached their fiduciary duties under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq. The court concluded that ERISA's adoption of the common law's standard of fiduciary care in section 1104(a)(1)(B) permitted prudent fiduciaries making important decisions to rely on the advice of counsel in appropriate circumstances. Therefore, the court affirmed the district court's conclusion that the directors rightfully relied upon the advice of the plan's lawyer.View "Clark v. Feder Semo and Bard, P.C., et al." on Justia Law

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

On March 28, 2008, while Salata was cleaning property owned by Weyerhaeuser, she slipped and fell, claiming loose floor tiles were the cause. On March 8, 2010, Salata filed suit. The parties attempted voluntary mediation, but when they could not reach a settlement, Salata’s then-attorneys, were allowed to withdraw, and Salata’s current counsel, Elrabadi, took over on March 14, 2012. On February 26, 2013, Weyerhaeuser moved to dismiss for failure to comply with the court’s discovery order under FRCP 37, and for a want of prosecution under Rule 41(b); Weyerhaeuser also requested attorney’s fees. The court held a hearing on the motion. Elrabadi failed to appear. The court declined to impose sanctions, but dismissed the case with prejudice for want of prosecution. On May 9, 2013, Elrabadi filed a Motion to Reinstate. Ultimately, the court denied the motion. The Seventh Circuit affirmed. View "Salata v. Weyerhaeuser Co." on Justia Law