Justia Professional Malpractice & Ethics Opinion Summaries

Appellant Elaine Wesely filed a dental malpractice action, alleging that she received negligent care from dentist A. David Flor. To satisfy the statutory requirement of expert disclosure, Wesely submitted an affidavit disclosing the opinions of a doctor of internal medicine, not a dentist. After Flor moved to dismiss the claim, asserting the affidavit was deficient because the internist was not qualified to be an expert in the action, Wesely's counsel submitted a second affidavit identifying a dentist-expert and disclosing his opinions. The district court granted Flor's motion to dismiss, concluding that the second affidavit did not amend the original affidavit. The court of appeals affirmed. The Supreme Court reversed, holding that the second affidavit was an amended affidavit that was capable of correcting the alleged deficiencies of the first affidavit. Remanded. View "Wesely v. Flor" on Justia Law

After receiving complaints about the alleged misconduct of Catoosa County Magistrate Court Judge Anthony Peters, the Judicial Qualifications Commission (JQC) initiated an investigation and subsequently filed formal charges to have Judge Peters permanently removed from his position as a judge and barred from ever holding or seeking elected or appointed judicial office in the State of Georgia. The court agreed with the recommendation of the JQC where Judge Peters, among other things, obtained and consumed marijuana at least once a week from March to May of 2010; inappropriately used his judicial office to advance the personal interests of a family member; pointed a firearm at himself and indicated to another Magistrate Judge that he was not afraid to die; appeared on a local cable television show, made derogatory remarks about the Chief Magistrate Judge, publicly disclosed that he had filed a complaint against the Chief Magistrate Judge, and displayed a photograph of an individual and identified the individual by name as a confidential informant; made a phone call to a local cable television show after initially trying to disguise his voice with multiple foreign accents and made certain comments; and refused to work certain hours. View "Inquiry Concerning Judge Anthony Peters" on Justia Law

Plaintiff Keith Drollinger, a convicted felon, brought suit against the lawyers who represented him in his attempt to obtain post-conviction relief, but shortly before the matter was scheduled for trial, withdrew. Defendants Gordon Mallon, John Lamborn, Robert Raschio and their firm, Mallon Lamborn & Raschio, PC, moved to dismiss the malpractice action for lack of subject matter jurisdiction and for failure to state a claim. They argued that, under the Supreme Court’s decision in "Stevens v. Bispham," (316 Or 221)(1993)), the action was barred because plaintiff had not been exonerated of the underlying offenses. The circuit court agreed with Defendants, granted their motion, and dismissed the complaint. On appeal, the Court of Appeals affirmed without opinion. Upon review, the Supreme Court concluded that "Stevens," a case addressing the statute of limitations in a malpractice action brought by a former criminal defendant against trial counsel in the underlying case, did not preclude this convicted Plaintiff from pursuing a malpractice action against post-conviction counsel. Because the circuit court treated actual exoneration as a prerequisite for bringing the action, the Court reversed and remanded the case for further proceedings. View "Drollinger v. Mallon" on Justia Law

This case arose when respondent, a resident of New York, filed a petition for administration asserting that he was entitled to be appointed personal representative of the estate of the decedent because he was the decedent's stepson and was nominated as personal representative in the will. At issue was whether an objection to the qualifications of a personal representative of an estate was barred by the three-month filing deadline set forth in section 733.212(3), Florida Statutes, a provision of the Florida Probate Code, when the objection was not filed within the statutory time frame. The court held that section 733.212(3) barred an objection to the qualifications of a personal representative, including an objection that the personal representative was never qualified to serve, if the objection filed under this statute, except where fraud, misrepresentation, or misconduct with regard to the qualifications was not apparent on the face of the petition or discovered within the statutory time frame. Accordingly, because fraud, misrepresentation, or misconduct was not alleged in relation to the objection to the personal representative in this case, the court approved the decision of the First District Court. The court also held that, to the extent that the decision of the Third District Court in Angelus v. Pass involved allegations of fraud or misrepresentation not revealed in the petition for administration, the court approved the result in Angelus. However, the court disapproved Angelus to the extent that it held section 733.212(3) did not bar objections that a personal representative was never qualified to serve. View "Hill v. Davis, Etc." on Justia Law

The United States appealed an award of attorney's fees and costs under the Hyde Amendment, Pub. L. No. 105-119, section 617, 111 Stat. 2440, 2519, and two attorneys, Sean Cronin and Andrea Hoffman, appeal public reprimands entered against them based on their work as Assistant United States Attorneys in an underlying criminal action marked by hard adversarial tactics. The court held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and the district court violated the constitutional right to due process of the two lead prosecutors, when it denied them notice of any charges of misconduct and an opportunity to be heard. Therefore, the court vacated the award of attorney's fees and costs against the United States and the public reprimand of Cronin and Hoffman, but the court denied the request of Cronin and Hoffman that the court reassign the case to a different district judge at this stage. View "United States v. Shaygan" on Justia Law

Plaintiff was a secretary of G. Thomas Porteous, Jr. during his service as a district judge until Porteous was impeached and the Judicial Council of the Fifth Circuit suspended Porteous's authority to employ staff, which resulted in plaintiff's termination. Plaintiff sued the Judicial Council and fifteen of its members seeking declaratory relief, reinstatement to her position, monetary relief, and attorney's fees and costs. Plaintiff subsequently appealed the district court's order insofar as it dismissed her claims against the members of the Judicial Council. The court held that plaintiff lacked prudential standing to bring her constitutional challenge to the Judicial Council's action. The court rejected plaintiff's claim that the ultra vires exception applied to sovereign immunity where her claims for injunctive relief were moot in light of Porteous's removal from office; claims for back pay and retirement credits were barred by sovereign immunity; and plaintiff lacked the necessary injury-in-fact to pursue declaratory relief. The court also held that even if plaintiff had standing to seek declaratory relief, she had not pleaded a sufficient claim of ultra vires action by the Judicial Council to overcome the jurisdictional bar of sovereign immunity. Accordingly, the judgment was affirmed. View "Danos v. Jones, et al" on Justia Law

The parties agree that the company attempted to collect an overdue hospital bill in a way that violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692 and that plaintiff is entitled to statutory damages of $1,000. Plaintiff's lawyer endeavored to transform the case into a class action, and the district court, frustrated by the effort, dismissed the whole action. The Seventh Circuit held that dismissal for want of prosecution was an abuse of discretion. All of the errors at issue were the fault of the lawyer and had nothing to do with the claim. The court should have considered other alternatives before dismissal. View "Kasalo v. Harris & Harris, LTD" on Justia Law

The United States Trustee, Region 3, appealed a district court’s reversal of sanctions originally imposed by the bankruptcy court on attorneys Mark Udren and Lorraine Doyle and HSBC for violating the Federal Rules of Bankruptcy Procedure. "This case [was] an unfortunate example of the ways in which overreliance on computerized processes in a high-volume practice, as well as a failure on the part of client and lawyers alike to take responsibility for accurate knowledge of a case, can lead to attorney misconduct before a court." At issue were two pleadings that HSBC’s attorneys filed in bankruptcy court. Both documents contained imperfect information and were filed with the court. The attorneys appealed the sanctions order arguing that the facts contained in the filed documents were "actually literally true." Upon review, the Third Circuit found that the statements therein were not wholly true, and faulted counsel for "rubber-stamping" the information taken from its computerized database without additional investigation as to their veracity: "[w]here a lawyer systematically fails to take any responsibility for seeking adequate information from her client, makes representations without any factual basis because they are included in a "form pleading" she has been trained to fill out, and ignores obvious indications that her information may be incorrect, she cannot be said to have made reasonable inquiry." The Court concluded the bankruptcy court did not abuse its discretion in imposing sanctions on Doyle or the Udren Firm itself. However, it found the lower court abused its discretion in imposing sanctions on Udren individually. View "In re: Taylor, et al" on Justia Law

Plaintiff filed a motion seeking approval of its appointment of James Gallagher as its "Designated Consultant" pursuant to the Stipulation and Order for the Production and Exchange of Proprietary Information entered by the court on February 22, 2010. Defendant objected to Gallagher's designation. The court held that because the terms of the order did not prevent the selection of a likely fact witness as a Designated Consultant - and the order did not otherwise prevent Gallagher's designation - and because compensating Gallagher as a Designated Consultant (and not as a fact witness) would not violate the Delaware Lawyers' Rules of Professional Conduct, plaintiff's Motion to Approve Designated Consultant was granted. View "BAE Sys. Info. and Elec. Sys. Integration Inc. v. Lockheed Martin Corp." on Justia Law

A Polish citizen, who entered the U.S. on a visitor's visa in 1994, overstayed, and allegedly tried to bribe an immigration officer in a 1999 sting operation. Before her removal proceedings began, she married a U.S. citizen, who filed a petition for an alien relative visa. In 2006, after the petition was approved, she applied to adjust her status under 8 U.S.C. 1255. The IJ found her removable, denied her motion to suppress evidence collected in the sting, and decided that she was not entitled to adjust her status. The Board of Immigration Appeals dismissed an appeal. The Seventh Circuit dismissed an appeal and forwarded information about petitioner's attorney to the state disciplinary board. The petition included a single, underdeveloped legal argument: that evidence gathered during the sting should have been suppressed because the operation was an egregious violation of petitioner's right to due process, an argument foreclosed by an earlier case. The court noted its jurisdictional limitations, but stated that the agency's evaluation of the equities was not particularly persuasive and that it would have required more than weak circumstantial evidence that an alien had bribed a federal immigration official. View "Wroblewska v. Holder" on Justia Law