Justia Professional Malpractice & Ethics Opinion Summaries

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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

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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

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The Supreme Court affirmed the judgment of the district court dismissing this legal malpractice action as time barred, holding that the court did not err in ruling that the continuing representation exception to the two-year statute of limitations in Neb. Rev. Stat. 25-222 did not apply and granting Defendants' motion for summary judgment. Plaintiffs filed a complaint against Defendants setting forth claims of professional negligence relating to Defendants' representation of Plaintiffs in a personal injury action. The district court dismissed the action with prejudice, concluding that the continuous representation doctrine did not toll the accrual of the action and that the action was time barred because Plaintiffs filed their claim more than one year after discovery of the alleged negligent act. The Supreme Court affirmed, holding that the district court did not err when it dismissed the complaint as untimely. View "Dondlinger v. Nelson" on Justia Law

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The Supreme Court held that judgment creditors cannot levy on their judgment debtor, obtain the judgment debtor's chose in action for legal malpractice against the attorney representing the judgment debtor in the litigation giving rise to the judgment, and prosecute the claim for legal malpractice against the attorney as successors in interest to their judgment debtor. Janice and Jeff Gray were awarded $127 million in a civil suit against James Lee Hohenshell. The court of appeals affirmed. While the appeal was pending, the Grays caused to be issued a writ of execution on the judgment against Hohenshell. Amongst the property levied on was any claims against Michael Oliver, Hohenshell's lawyer in the underlying suit. The Grays purchased this right for $5000 at the sheriff's sale. The Grays then filed this malpractice claim against Oliver as successors in interest to Hohenshell. The district court granted Oliver's motion for summary judgment, holding that public policy prohibits the assignment of a legal malpractice claim to an adversarial party in the underlying lawsuit. The Supreme Court affirmed, holding that judgment creditors cannot prosecute a claim for legal malpractice as successors in interest to their former litigation adversary where the claim for legal malpractice arose out of the suit in which the parties were adverse. View "Gray v. Oliver" on Justia Law

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The Supreme Court affirmed the decision of the district court granting summary judgment for Defendants, an attorney and her law firm, in Plaintiff's legal malpractice action, holding that the district court properly granted summary judgment to Defendants. Plaintiff hired the attorney to represent him in an administrative hearing regarding his termination from employment with the City of Cheyenne. Plaintiff was denied a hearing to contest his termination because the attorney failed timely to request the hearing on behalf of Plaintiff. The district court granted summary judgment for Defendants. The Supreme Court affirmed, holding (1) Defendants' expert's opinion satisfied their burden by demonstrating Plaintiff would not have been successful in his hearing; (2) Plaintiff did not meet his burden to demonstrate through expert testimony that the attorney's failure to timely file a request for a hearing caused his damages and created a genuine issue of material fact regarding causation; and (3) therefore, Plaintiff's expert could not opine on the likelihood of success had Plaintiff been given a hearing. View "Scranton v. Woodhouse" on Justia Law

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The Supreme Court affirmed the decision of the court of appeals affirming the judgment of the circuit court directing a verdict in favor of Defendant, an insurance agent, on Plaintiff's claim that Defendant was negligent because he procured an insurance policy that did not conform to Plaintiff's requirements, holding that Plaintiff must prove that it would have qualified for an insurance policy with better terms than the policy it actually obtained. Plaintiff sold new and used camper trailers. Plaintiff asked Defendant, an insurance agent, to acquire a policy to cover its camper inventory. Plaintiff thought Defendant had acquired a policy with a deductible for $1,000 per camper in the event of hail damage with a $5,000 aggregate deductible limit, but the policy actually required a $5,000 deductible per camper, with no aggregate limit. After a hailstorm damaged many of the campers on its lot, Plaintiff sued Defendant. The circuit court directed a verdict due to Plaintiff's failure to introduce evidence that an insurer would have insured Plaintiff with the deductible limits it thought it had. The Supreme Court affirmed, holding that Plaintiff must not only prove that an insurance policy with the requested deductibles was commercially available but that Plaintiff would actually have qualified for that policy. View "Emer's Camper Corral, LLC v. Western Heritage Insurance Co." on Justia Law

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Green, was convicted of two counts of the first-degree murder for the gang-related shooting death of Lewis and was sentenced to 35 years’ imprisonment on one of those convictions. The conviction was affirmed on direct appeal. The trial court rejected a post-conviction petition alleging that Green’s trial counsel, Ritacca, labored under a per se conflict of interest because his trial counsel had previously represented Williams, the intended victim of the murder, who was in the vehicle with Lewis at the time of the shooting. Green neither knew about the conflict nor waived the conflict was rejected. The appellate court and Illinois Supreme Court affirmed, finding no per se conflict of interest. Only three situations establish a per se conflict of interest: where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; where defense counsel contemporaneously represents a prosecution witness; and where defense counsel was a former prosecutor who had been personally involved with the prosecution of the defendant. Ritacca’s representation of both defendant and Williams did not fit within any of those three per se conflict situations. View "People v. Green" on Justia Law

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Mariah Charles was born prematurely in October 2014 at Lafayette General Medical Center (LGMC) and hospitalized there until transferred to Women’s and Children’s Hospital of Lafayette (W&C). She was released in April 2015 release. Dr. Geeta Dalal, a pediatric cardiologist with clinical privileges at both hospitals, contributed to Mariah’s care during and after Mariah’s hospitalization. While Mariah remained at LGMC, Dr. Dalal ordered and interpreted eight echocardiograms that, according to the petition, revealed abnormal findings that could cause pulmonary artery hypertension. The petition alleged Dr. Dalal took no action other than ordering additional echocardiograms. After Mariah’s transfer to W&C, Dr. Dalal interpreted three more echocardiograms, again noted abnormalities, and allegedly failed to properly diagnose or treat Mariah. On May 8, Mariah was admitted to the pediatric intensive care unit at W&C and examined by another pediatric cardiologist who diagnosed pulmonary artery hypertension. Mariah was transferred by helicopter to Children’s Hospital of New Orleans where medical staff confirmed the diagnosis and performed a heart catheterization procedure. Mariah’s mother, Megan Thomas (Thomas), initiated Medical Review Panel proceedings with the Patient’s Compensation Fund against Dr. Dalal and the hospital defendants, alleging medical malpractice and seeking damages for their alleged failure to properly diagnose and treat Mariah. In addition to the Medical Review Panel proceedings, Thomas filed suit against the hospitals: The Regional Health System of Acadiana, LLC, Women’s & Children’s Hospital, Inc., HCA Holdings, Inc. W&C, and LGMC. The issue presented for the Louisiana Supreme Court's review centered on allegations of negligent credentialing against Dr. Dalal, and whether those allegations fell within the scope of the Louisiana Medical Malpractice Act, or alternatively, sounded in general negligence. The Supreme Court reversed the appellate court, and reinstated the trial court's judgment sustaining the hospital defendants' exceptions of prematurity. View "Thomas v. Regional Health System of Acadiana, LLC." on Justia Law

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The Supreme Court declined to accept Cypress Fund, LLC's request that the Court declare, as a matter of public policy, that Cougar Canyon Loan, LLC cannot foreclose on Cypress's cause of action for legal malpractice, holding that the policy concerns raised by Cypress were insufficient to override the plain language of Utah R. Civ. P. 64 and 64E, the rules governing the foreclosure of legal claims through a writ of execution. In a separate case, Cougar Canyon obtained a $4 million judgment against Cypress. Cypress filed a malpractice suit against its former legal counsel, believing that the judgment resulted from that counsel's malpractice. In its effort to collect on its judgment against Cypress, Cougar Canyon foreclosed on Cypress's right to bring the malpractice claim. At issue on appeal was whether public policy requires that this foreclosure be undone. The Supreme Court affirmed the district court's denial of Cypress's motion to quash the writ of execution, holding that the plain language of the rules of civil procedure allowed Cougar Canyon to execute on Cypress's legal malpractice claim, and any change to those rules should be sought through the normal rule-making process. View "Cougar Canyon Loan, LLC v. Cypress Fund, LLC" on Justia Law

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Appellant Sara Ladd, a New Jersey resident, owned two vacation properties on Arrowhead Lake in the Pocono Mountains. Ladd started renting one of these properties in 2009 and the other in 2013 to supplement her income after being laid off from her job as a digital marketer. Eventually, some of her Arrowhead Lake neighbors learned of her success and asked her to manage rental of their own properties. Ladd considered “short-term” vacation rentals to be rentals for fewer than thirty days, and limited her services to such transactions only. Ladd acted as an “independent contractor” for her “clients” and entered into written agreements with them related to her services. In January 2017, the Commonwealth’s Bureau of Occupational and Professional Affairs (the Bureau), charged with overseeing the Commission’s enforcement of Real Estate Licensing and Registration Act (RELRA), called Ladd to inform her she had been reported for the “unlicensed practice of real estate.” Ladd reviewed RELRA and concluded her short-term vacation property management services were covered by the statute, and she would have to obtain a real estate broker license to continue operating her business. As Ladd was sixty-one years old and unwilling to meet RELRA’s licensing requirements, she shuttered PMVP to avoid the civil and criminal sanctions described in the statute. The Pennsylvania Supreme Court considered the Commonwealth Court's holding that the RELA's broker licensing requirements satisfied the heightened rational basis test articulated in Gambone v. Commonwealth, 101 A.2d 634 (Pa. 1954), and thus do not violate Article I, Section 1 of the Pennsylvania Constitution when applied to a self-described “short-term vacation property manager.” The Supreme Court concluded the Commonwealth Court erred in so holding, and therefore reversed and remanded for further proceedings. View "Ladd et al v. Real Estate Commission, et al." on Justia Law