Justia Professional Malpractice & Ethics Opinion Summaries

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The version of the apportionment statute at issue in this appeal, OCGA 51-12-33, was enacted as part of the Tort Reform Act of 2005. Subsection (b) required damages to be apportioned “among the persons who are liable according to the percentages of fault of each person.” Subsection (b) had a critical textual difference from subsection (a): although subsection (a) applied “[w]here an action is brought against one or more persons,” subsection (b) applied only “[w]here an action is brought against more than one person . . . .” Although the Georgia Supreme Court previously decided at least one case in which the provisions of subsection (b) were applied in single-defendant cases, the Court expressly left open the question of whether such an application was proper. In this case, the Court of Appeals answered that open question by determining that the apportionment by percentage of fault directed by subsection (b) did not apply in single-defendant cases. The Supreme Court granted certiorari on the question of whether subsection (b) applied in single-defendant cases and also on the question of whether an expenses-of-litigation award under OCGA 13-6-11 was subject to apportionment. Although the Supreme Court reversed the Court of Appeals on the latter question and held that such expenses were not categorically excluded from apportionment, the Court concluded the Court of Appeals was correct on the scope of application of the apportionment directed by subsection (b): it applied only in cases “brought against more than one person,” not in single-defendant lawsuits like this one. Thus, the Supreme Court affirmed in part, reversed in part, and remanded for further proceedings regarding the trial court’s apportionment of the expenses-of-litigation award. View "Alston & Bird, LLP v. Hatcher Management Holdings, LLC" on Justia Law

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Plaintiff Brian Exline appealed an order granting defendant Lisa Gillmor’s special motion to strike under California's anti-SLAPP law. Exline filed a complaint against Gillmor alleging that, during her terms serving as a councilmember and then as the mayor of the City of Santa Clara (the City), Gillmor violated the Political Reform Act of 1974 (the Act) by failing to disclose on Form 700 filings her interest in, and income she received from, an entity known as Public Property Advisors. Exline argued his lawsuit was not subject to challenge under Code of Civil Procedure section 425.16 because it fell within the public interest exemption codified at section 425.17 (b). He contended the trial court erred by concluding that an exception to that exemption, set forth in section 425.17(d)(2) applied and rendered the exemption inapplicable. The Court of Appeal held the exception applied to completion of the Form 700, and the complaint in this case was therefore subject to the anti-SLAPP law. View "Exline v. Gillmor" on Justia Law

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David Roberson appealed a circuit court's dismissal of his claims against Balch & Bingham, LLP ("Balch"), on the basis that those claims were barred by the limitations periods contained in the Alabama Legal Services Liability Act ("the ALSLA"). After review of the trial court record, the Alabama Supreme Court affirmed, but on grounds that differed from the trial court's. "[T]he gravamen of Roberson's claims against Balch involved the provision of legal services. However, both Roberson and Balch assert that Roberson was not Balch's client, and those assertions are borne out in the third amended complaint, which indicates that Balch was engaged by Drummond, not personally by Roberson. ... Roberson's claims against the law firm Drummond engaged, Balch, are barred by the ALSLA because Roberson cannot meet an essential element of an ALSLA claim -- namely, he was not Balch's client -- and thus Balch owed no duty to Roberson. ... the circuit court's rationale was based on the applicability of the ALSLA's limitations periods." View "Roberson v. Balch & Bingham, LLP" on Justia Law

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Plaintiff and his firm appeal from the district court's opinion and order sanctioning them for their conduct during their representation of a client in his copyright case against Bandshell Artist Management. The district court found that plaintiff repeatedly violated court orders, lied under oath to the district court, and brought and maintained this case in bad faith. The district court cited its authority under 28 U.S.C. 1927, Federal Rule of Civil Procedure 16, and its inherent power, and imposed monetary sanctions in attorney's fees, additional monetary sanctions, and nonmonetary sanctions that, inter alia, imposed nationwide requirements on cases filed by plaintiff and his firm.The Second Circuit affirmed, holding that the district court's sanctions on plaintiff and his law firm, while strict, were not an abuse of discretion. In this case, the district court's factual findings – including the findings of bad faith – were adequately supported by the evidence in the record and by the district court's judgments of witness credibility. The court explained that, given plaintiff's serious and repeated misconduct, he and his firm merited sanctions reserved for attorneys and litigants who demonstrate via their actions that unusual measures are required to deter future misbehavior, protect other litigants, and maintain the integrity of the judicial system. View "Liebowitz v. Bandshell Artist Management" on Justia Law

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Plaintiff filed suit against his criminal defense attorney for legal malpractice after he entered a plea of guilty to federal tax charges in United States District Court. Plaintiff alleged his attorney, Martin Schainbaum, negligently advised him to sign "closing agreements" by which he agreed to pay civil tax fraud penalties as part of the disposition of his criminal case. Plaintiff contended that but for Schainbaum's negligence, he would not have agreed to that obligation.The Court of Appeal found that the trial court properly sustained the demurrer without leave to amend because plaintiff failed to plead actual innocence, a necessary element of his cause of action for legal malpractice arising out of a criminal proceeding.The court explained that the civil penalties arose out of the criminal prosecution, as did any alleged legal malpractice attributable to Schainbaum. Furthermore, plaintiff was required to allege actual innocence. Under Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200, plaintiff was required to obtain exoneration of his guilt as a prerequisite to proving actual innocence in his malpractice action against his former criminal defense counsel, which he failed to do so. Therefore, the demurrer was properly sustained and the court affirmed the judgment. View "Genis v. Schainbaum" on Justia Law

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The Supreme Court affirmed the judgment of the district court dismissing Plaintiffs' legal malpractice action with prejudice, holding that the district court did not err.Plaintiffs filed this legal malpractice suit against Defendant, the law firm of their former attorney who represented them in a tort case involving a boating accident, for its failure to discover and make a claim against a homeowners insurance policy with a $500,000 policy limit. The court granted summary judgment to Defendant and dismissed Plaintiffs' complaint. The Supreme Court affirmed, holding that the district court (1) did not err in denying Plaintiffs' motion for partial summary judgment on the issue of whether an endorsement deleted the watercraft exclusion from the insurance policy; (2) did not err in granting summary judgment to Defendant on the issue of whether there was insurance coverage under the insurance policy for the boating accident and dismissing the legal malpractice claims; and (3) did not abuse its discretion in denying Plaintiffs' Rule 60(b) motion for relief from judgment. View "Young v. Hammer" on Justia Law

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The Supreme Court affirmed the decision of the district court affirming the sanction imposed upon Thomas B. Whittle, M.D. for committing acts of unprofessional conduct, holding that none of Whittle's claims on appeal had merit.The State brought disciplinary charges against Whittle on the grounds that he practiced medicine in a pattern of incompetence and negligence and that his conduct was unprofessional. The Division of Public Health for the Department of Health and Human Services suspended Whittle's license to practice medicine for six months after holding a hearing. The district court affirmed. The Supreme Court affirmed, holding (1) the Department possessed authority under Neb. Rev. Stat. 38-179(15) to define acts of unprofessional conduct, and Neb. Rev. Stat. 010.02(32) did not impermissibly modify, alter, or enlarge portions of its enabling statute; (2) the evidence supported the district court's conclusion that Whittle's actions warranted the discipline imposed; and (3) Whittle's remaining claims were without merit. View "Whittle v. State" on Justia Law

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Plaintiff Rodney Davis, a physician assistant, learned to perform liposuction under the guidance of a physician. Davis grew dissatisfied with the physician for whom he worked, so he decided to establish a new practice. To do so, Davis needed a physician to serve as his supervising physician. Davis found Dr. Jerrell Borup, who had been an anesthesiologist for 18 years, but who had not practiced medicine for 12 years. Before meeting Davis, Borup had never performed liposuction or other surgery. Borup agreed to serve as “Medical Director,” although he would never perform a procedure at the new practice. Borup’s role, in practice, consisted of reviewing charts. Davis, who gave himself the title of “Director of Surgery,” would perform all of the liposuction procedures. Davis opened his practice, Pacific Liposculpture, in September 2010. In 2015, the Physician Assistant Board (the Board) filed an accusation accusing Davis of, among other things, the unlicensed practice of medicine, gross negligence, repeated negligent acts, and false and/or misleading advertising. An administrative law judge (ALJ) found the Board’s accusations were established by clear and convincing evidence, and recommended the revocation of Davis’s license. The Board adopted the ALJ’s findings and recommendations. Davis filed a petition for a writ of administrative mandamus seeking, inter alia, a writ compelling the Board to set aside its decision. The trial court denied the petition. On appeal, Davis argued the ALJ erred in finding that he committed the various acts alleged, and that the findings were not supported by substantial evidence. He further claimed that the discipline imposed constituted a manifest abuse of discretion. Finding no reversible error, the Court of Appeal affirmed. View "Davis v. Physician Assistant Board" on Justia Law

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Linda and her husband Milton set up an estate plan with the help of attorney Roth. Milton created a trust and designated himself as sole trustee. Upon his death, Linda and his accountant, Sanders, would become cotrustees. Milton’s assets included a $1.5 million Vanguard account. Milton later changed the Vanguard account and other accounts to transfer on death directly to Linda as the sole primary beneficiary. Milton died in 2016. Linda believed that Roth was still her attorney. Roth and Sanders convinced Linda to waive her rights as co-trustee and to disclaim her interest in the Vanguard account; they suggested that she had acquired these interests through wrongdoing. Roth then transferred the disclaimed Vanguard account directly to Milton’s son, David, instead of to the trust. David sued Linda and obtained an Indiana state court judgment that she exerted undue influence on Milton and that the trust was the proper owner of certain assets Milton had transferred to Linda.Linda sued in federal court, asserting fraud, conspiracy, and malpractice against Roth and Sanders, claiming the two “duped” her into disclaiming certain assets and that Roth committed malpractice by transferring the account to David rather than the trust. The Seventh Circuit affirmed the dismissal of the suit; issue preclusion based on the Indiana judgment foreclosed Linda’s claims because the Indiana jury’s finding of undue influence showed that Roth and Sanders’s advice to disclaim her illegally-obtained interests was neither negligent nor fraudulent. View "Bergal v. Roth" on Justia Law

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The Supreme Court accepted a question certified by the United States Court of Appeals for the Seventh Circuit and answered that the Indiana Medical Malpractice Act applies when a plaintiff alleges that a qualified healthcare provider treated someone else negligently and that the negligent treatment injured the plaintiff.Plaintiff was the husband and father of two individuals killed in a car crash caused by Physician's patient. Plaintiff filed a civil action in federal court alleging that Physician's negligence in prescribing opiates to his patient caused the wrongful deaths of his wife and daughter. The state insurance commissioner, who administered the Patient's Compensation Fund, received permission to intervene. Plaintiff settled with Physician, who was dismissed. Plaintiff then sought excess damages from the Fund. The Fund responded that it had no liability because the underlying claim was not covered by the Act. The district court entered judgment for the Fund. On appeal, the Seventh Circuit certified to questions to the Supreme Court. The Supreme Court declined to answer question one and answered question two in the affirmative, holding that the Act applies where a plaintiff alleges that a qualified healthcare provider's negligent treatment of someone else caused the plaintiff to suffer an injury. View "Cutchin v. Beard" on Justia Law