Justia Professional Malpractice & Ethics Opinion Summaries

The Judicial Conduct Board concluded that respondent Judge Ernest Balivet violated Canon 3(B)(8) of the Vermont Code of Judicial Conduct. The Supreme Court ordered review on its own motion. The alleged violation stemmed from the judge's handling of a grandfather's petition for guardianship of his granddaughter, and a subsequent request for termination of the parents' parental rights to the child. Before the hearing before the Judicial Conduct Board, the parties identified three disputed issues : (1)whether respondent failed to rule in a timely manner on the motion to revoke guardianship filed by the child’s parents; (2) whether respondent caused unnecessary delay in failing to schedule a hearing on the grandfather’s motion to terminate the father’s parental rights; and (3) whether respondent failed to respond in a timely manner to the order of remand from the family court. The Board’s sanction order recognized respondent’s responsibility for undue delay and endemic court management issues, but also acknowledged that the choices and actions of others played a significant role in the overall duration of the underlying case. It took into account respondent’s forthrightness in his dealings with the Board, his good intentions toward the parties, the reasonableness of his rulings in the underlying case, and his willingness to accept conditions intended to prevent this type of problem from recurring. The Supreme Court saw no reason to set aside the recommended conditions of respondent's sanctions. The Court did conclude, however, that characterization of respondent’s reprimand as “private,” rather than “public,” despite the conceded public character of the reprimand, was confusing and "cannot stand." Accordingly, the Court amended the sanction to characterize it as a “public reprimand.” In all other respects, the Court affirmed the Board’s sanction for respondent’s violation of Canon 3(B)(8). View "In re Balivet" on Justia Law

Larysa and Alan Asher filed an action individually and as parents and next friends of their minor child, asserting that Dr. Anthony Onuigbo was negligent in delivering their baby. The jury found in favor of Asher and awarded damages. Onuigbo appealed. The Supreme Court affirmed, holding (1) the district court erred by providing the jury with a causation instruction based upon the Restatement (Second) of Torts rather than an instruction based upon the Restatement (Third) of Torts, as adopted by the Court in Thompson v. Kaszinski, but the error was harmless under the facts and circumstances of this case; and (2) substantial evidence supported submission of two challenged specifications of negligence to the jury. View "Asher v. OB-GYN Specialists, P.C." on Justia Law

In 2008, Plaintiffs S. Lavon Evans Jr. and his companies S. Lavon Evans Jr. Operating Company, Inc.; S. Lavon Evans Jr. Drilling Ventures, LLC; and E & D Services, Inc. sued Defendants the law firm of Baker & McKenzie, LLP, and one of its partners, Joel Held. The complaint also named as defendants Laredo Energy Holdings, LLC, and its related subsidiaries S. Lavon Evans Operating Texas, LLC, and E & D Drilling Services, LLC. Plaintiffs listed seven causes of action in the complaint: counts one and seven charged the Baker Defendants with legal malpractice and breach of contract; counts two through six charged all the defendants with breach of fiduciary duty, negligent omission and misstatements of material facts, civil conspiracy, aiding and abetting, tortious interference, and breach of duty of good faith and fair dealing. Defendants Laredo Energy Holdings, LLC; S. Lavon Evans Operating Texas, LLC; and E&D Drilling Services filed a cross-claim against the Baker Defendants claiming legal malpractice, breach of contract, breach of duty of good faith and fair dealing, and breach of fiduciary duty. Evans asserted that in 2007, he lost access to his companies’ two largest assets (two oil drilling rigs) and was sued in Texas by the Baker Defendants on behalf of Reed Cagle (Evans’s business partner), who was acting on behalf of Laredo Energy Holdings, LLC. This triggered a flurry of liens and suits by vendors against Evans and his companies – all because, as Evans claims - he made decisions and entered agreements based on advice and recommendations from the Baker Defendants, who Evans believed to be his lawyers. Evans claimed that his businesses once were worth more than $50 million but now were accountable for debts exceeding $31 million as a result of the conduct by the Baker Defendants. The Mississippi case was tried, and the jury returned a verdict of $103,400,000 in actual damages for Plaintiffs and Cross-Plaintiffs. S. Lavon Evans Jr. was awarded $1 million from defendant Joel Held and $30 million from Baker & McKenzie. S. Lavon Evans Operating Company, Inc., was awarded $1 million from Joel Held and $29 million from Baker & McKenzie. E&D Services, LLC, was awarded $1 million from Joel Held and $19 million from Baker & McKenzie. The jury also assessed Evans, individually, with ten-percent comparative fault. And the trial court reduced the $31 million amount awarded to Evans, individually, by ten percent. The Cross-Plaintiffs were separately awarded $22.4 million from Joel Held and Baker & McKenzie, collectively. A divided jury awarded $75,000 in punitive damages to Plaintiffs and $75,000 in punitive damages to Cross-Plaintiffs. The trial court denied the Baker Defendants’ post-trial motions for judgment notwithstanding the verdict, new trial, and remittitur. This appeal followed. After careful consideration of the trial court record, the Supreme Court affirmed as to the Baker Defendants’ liability. But because the Court found the jury was not properly instructed, it reversed and remanded the case for a new trial on proximate cause and damages.View "Baker & McKenzie, LLP v. Evans, Jr." on Justia Law

Marie Reed appeared before Judge Clark as a plaintiff in "Reed v. East Baton Rouge Sheriff Dept." Specifically, the Formal Charge at issue centers on a colloquy which took place in open court between Judge Clark and Ms. Reed while Ms. Reed’s lawyer was absent and on Judge Clark’s order dismissing Ms. Reed’s suit without prejudice after Ms. Reed was unable to prove her eligibility to proceed in forma pauperis. Ms. Reed had an unusual history of continuing to act many times as her own lawyer, even after she hired counsel. The Supreme Court found that because Judge Clark had signed an order dismissing Ms. Reed’s case without prejudice on April 18, 2011, the brief exchange she had with Ms. Reed on April 19th was of no substantive moment. Judge Clark testified, as the written order confirmed, that she denied the motion to stay and dismissed the case without prejudice the prior day. She took the bench only to announce her ruling on the record (an oral entry which would have been made even if no one associated with the case had been present that morning). The Court was "fully persuaded" that nothing with which the Commission charged Judge Clark warranted the Court’s sanction for judicial misconduct. View "In re Hon. Janice Clark" on Justia Law

In 1983, Birkelbach founded Birkelbach Investment Securities (BIS) and served as its president. Birkelbach was registered as a general securities representative and principal, a municipal securities representative and principal, an options principal, and a financial and operations principal. Birckelbach supervised Murphy’s control of one account held by an unsophisticated investor with assets of $1.7 million, while Murphy generated more than a million dollars in commissions, incurred substantial losses, and engaged in transactions that were not part of the investor-authorized strategy. The investor was unable to understand her statements, many of which included errors that overvalued the account. Lowry similarly mishandled, and Birkelbach supervised, the management of the smaller account of a college student/member of the U.S. military. Birkelbach knew that Murphy had been previously censured, suspended, and fined by the Chicago Board Options Exchange, for trading without authorization and had a history of customer complaints. Birkelbach also had a previous disciplinary history. He had been sanctioned by the Illinois Securities Department and, in 2005, additional supervision of Murphy had been requested by the Financial Industry Regulatory Authority (FINRA), a self-regulatory organization formed under the Securities Exchange Act, 15 U.S.C. 78o-3. Birkelbach did not do so. After FINRA investigated BIS and recommended sanctions, the Securities and Exchange Commission barred Birkelbach from participation in the securities industry for life. The Seventh Circuit denied a petition for review, rejecting arguments that the original disciplinary complaint was untimely and the lifetime bar was an excessive punishment.View "Birkelbach v. Sec. & Exch. Comm'n" on Justia Law

In the late 1990s, people who had taken the prescription diet-drug combination Fen-Phen began suing Wyeth, claiming that the drugs caused valvular heart disease. A 2000 settlement included creation of the Fen-Phen Settlement Trust to compensate class members who had sustained heart damage. Claims required medical evidence. Attorneys who represented certain claimants retained Tai, a board-certified Level 2-qualified cardiologist, to read tests and prepare reports. Tai read 12,000 tests and asserted that he was owed $2 million dollars for his services. Tai later acknowledged that in about 10% of the cases, he dictated reports consistent with the technicians’ reports despite knowing that the measurements were wrong, and that he had his technician and office manager review about 1,000 of the tests because he did not have enough time to do the work. A review of the forms Tai submitted found that, in a substantial number of cases, the measurements were clearly incorrect and were actually inconsistent with a human adult heart. Tai was convicted of mail and wire fraud, 18 U.S.C. 1341 and 1343, was sentenced to 72 months’ imprisonment, and was ordered to pay restitution of $4,579,663 and a fine of $15,000. The Third Circuit rejected arguments that the court erred by implicitly shifting the burden of proof in its “willful blindness” jury instruction and applying upward adjustments under the advisory Sentencing Guidelines for abuse of a position of trust and use of a special skill, but remanded for factual findings concerning whether Tai supervised a criminally culpable subordinate, as required for an aggravated role enhancement. View "United States v. Tai" on Justia Law

Reifer suffered a worker’s compensation injury at IU-20 where she provided special education. Her injuries prevented her from returning to work. She retained Attorney Russo. Russo carried legal malpractice insurance with Westport in compliance with the Pennsylvania Rules of Professional Conduct. When IU-20 initiated disciplinary proceedings against Reifer, Russo failed to appear at the hearing. When IU-20 terminated her, Russo failed to appeal. Russo filed suit alleging violation of Reifer’s employment rights, which he lost for failure to exhaust state remedies. When Reifer sought alternate employment, Russo advised her to answer an application question as to whether she had ever been terminated in the negative. Reifer was terminated and disciplined for the false answer. Reifer commenced a malpractice claim against Russo. Russo’s “claims-made” policy only covered losses claimed during the policy period or within 60 days of the policy’s expiration. Russo failed to inform Westport of the action until several months after the policy lapsed and he failed to secure a replacement policy. Westport refused to defend Russo. Russo admitted liability. A jury awarded Reifer $4,251,516. Russo assigned to Reifer his rights under the Westport policy. Reifer sought a declaratory judgment that Westport was required to show it was prejudiced by Russo’s failure to notify and, failing to do so, owed a duty to defend and indemnify. The federal district court, sua sponte declined to exercise jurisdiction and remanded to state court. The Third Circuit affirmed. View "Reifer v. Westport Ins. Corp." on Justia Law

Plaintiff filed a legal malpractice action against two attorneys and a law firm (Respondents) alleging that their negligence resulted in failed collateral in securing a promissory note, particularly a defective deed on certain property. Plaintiff then sued a holding company and two individuals to recover the remaining balance due under the note. In the collection action, the circuit court entered a stipulated settlement that extinguished the parties' obligations under the note. In the malpractice action, the circuit court awarded summary judgment to Respondents, concluding that Plaintiff had failed to prove he sustained damages as a result of Respondents' alleged professional negligence because the stipulated settlement extinguished the defective deed upon which Plaintiff based his claim for damages. After the circuit court entered a subsequent nunc pro tunc order in the collection action omitting the language extinguishing the parties' obligations under the note, Plaintiff sought relief from the summary judgment ruling in the legal malpractice action. The circuit court denied relief. The Supreme Court affirmed, holding (1) Plaintiff failed to prove Respondents' alleged professional negligence caused him to sustain any purported damages; and (2) based on the law of judicial estoppel, the circuit court correctly ruled that Plaintiff was not entitled to relief from its earlier summary judgment ruling.View "Burnworth v. George" on Justia Law

Stewart Title Guaranty Company hired the law firm Witherspoon, Kelley, Davenport & Toole, PS to defend its insured, Sterling Savings Bank, from a claim of lien priority on real property by a construction company. The claim was resolved in favor of the construction company, and Stewart Title sued the firm for malpractice. Witherspoon moved for summary judgment arguing it owed a duty to the client Sterling Bank and not Stewart Title, and that the alleged malfeasance (not arguing equitable subrogation) was not a viable argument in the lien priority suit. The trial court ruled against Witherspoon on the first, no-duty, ground but agreed with it on the second, no-breach, ground. The court therefore granted summary judgment in favor of Witherspoon. Stewart Title appealed. Upon review, the Supreme Court affirmed the trial court in dismissing Stewart Title's malpractice case on the basis that Witherspoon owed Stewart Title no duty. The Court did not address the subrogation issue.View "Stewart Title Guar. Co. v. Sterling Sav. Bank" on Justia Law

Circuit Court Judge for the Thirteenth District Eddie H. Bowen failed to disclose a conflict to the parties in a civil lawsuit and failed to rule on counsel's motion to recuse made after the conflict was discovered. The Mississippi Commission on Judicial Performance recommended that Judge Bowen be publicly reprimanded and assessed $200 in costs. After review of the record, the Supreme Court found that the recommended sanctions were insufficient. The Court ordered that Judge Bowen be publicly reprimanded, fined $500, and assessed $200 in costs. View "Mississippi Commission on Judicial Performance v. Bowen" on Justia Law