Justia Professional Malpractice & Ethics Opinion Summaries

Defendant, a California licensed attorney, challenged (1) the sufficiency of the evidence supporting his conviction for transmitting extortionate communications in interstate commerce to sportswear leader Nike, attempted Hobbs Act extortion of Nike, and honest-services wire fraud of the client whom Defendant was purportedly representing in negotiations with Nike. Defendant further challenged the trial court’s jury instruction as to honest-services fraud and the legality of a $259,800.50 restitution award to Nike.   The Second Circuit affirmed. The court explained that the trial evidence was sufficient to support Defendant’s conviction for the two charged extortion counts because a reasonable jury could find that Defendant’s threat to injure Nike’s reputation and financial position was wrongful in that the multi-million-dollar demand supported by the threat bore no nexus to any claim of right. Further, the court held that the trial evidence was sufficient to support Defendant’s conviction for honest-services fraud because a reasonable jury could find that Defendant solicited a bribe from Nike in the form of a quid pro quo whereby Nike would pay Defendant many millions of dollars in return for which Defendant would violate his fiduciary duty as an attorney. The court further explained that the district court did not exceed its authority under the MVRA by awarding restitution more than 90 days after initial sentencing, and Defendant has shown no prejudice from the delayed award. Finally, the court wrote that the MVRA applies in this case where Nike sustained a pecuniary loss directly attributable to those crimes as a result of incurring fees for its attorneys to attend the meeting demanded by Defendant at which he first communicated his extortionate threat. View "United States v. Avenatti" on Justia Law

Plaintiff sued her employer, Defendant Montefiore Medical Center, and two of its employees, asserting claims of sexual harassment during and retaliatory discharge from her employment. Following the district court’s grant of partial summary judgment in their favor, Defendants moved to dismiss Plaintiff’s remaining claims and sought sanctions against Plaintiff and her counsel, Appellant Daniel Altaras and his firm, Appellant Derek Smith Law Group, PLLC (“DSLG”), contending that Plaintiff’s text message evidence was a forgery. The district court found by clear and convincing evidence that Plaintiff had fabricated the text messages, falsely testified about their production, and spoliated evidence in an attempt to conceal her wrongdoing. The district court also found that Altaras had facilitated Plaintiff’s misconduct. The district court dismissed Plaintiff’s remaining claims with prejudice and imposed a monetary sanction of attorneys’ fees, costs, and expenses incurred by Defendants. On appeal, Appellants challenged various aspects of the district court’s conduct.   The court vacated the portion of the district court’s judgment imposing a sanction on Altaras and DSLG and remanded for further proceedings consistent. The court affirmed the judgment of the district court in all other respects. The court held that the district court erred by failing to expressly make the finding of bad faith required to support the sanction it imposed against Altaras and DSLG.  The court directed that on remand, the district court may assess in its discretion whether Altaras’s misconduct—including his insistence on defending a complaint founded on obviously fabricated evidence or other actions—amounted to bad faith. View "Rossbach et al. v. Montefiore Medical Center et al." on Justia Law

Appellant Attorney Kezhaya represented The Satanic Temple, Inc., in its lawsuits against the City of Belle Plaine, Minnesota. The Temple sued the City, claiming that the City opened a limited public forum for a Christian monument, but closed the forum to exclude a Satanic monument. The City sought $33,886.80 in attorney’s fees incurred by responding to the complaint in the second lawsuit and preparing the motion for sanctions. The court determined that the rates charged by the City’s counsel were reasonable but observed that a portion of the work was duplicative of the first lawsuit and that the issues unique to the second lawsuit were not complex, novel, or difficult. The court thus reduced the requested amount by fifty percent and ordered the Temple’s counsel to pay the City $16,943.40 under Rule 11(c). Kezhaya appealed the sanctions order. He argues that the district court abused its discretion by (i) imposing sanctions, (ii) failing to consider non-monetary sanctions, and (iii) granting an arbitrary amount of sanctions.   The Eighth Circuit affirmed. The court explained that under the circumstances, it disagreed with Kezhaya’s contention about the righteousness of a second lawsuit. For the claims dismissed “without prejudice” in the first lawsuit, Kezhaya and the Temple made a strategic choice to seek leave to amend the complaint to correct the deficiencies identified in the dismissal order. Further, the court found that even if the City’s insurance carrier ultimately paid the fees, the fees were “incurred” for the motion and could be awarded under Rule 11(c)(2). View "Matthew Kezhaya v. City of Belle Plaine" on Justia Law

The Center for Scientific Integrity (CSI) was an organization that reported on academic retractions and accountability. CSI wrote an article about plaintiff-respondent Constance Iloh, a professor at the University of California, Irvine (UCI), after several academic journals retracted articles Iloh had written due to concerns about possible plagiarism or inaccurate citation references. In a follow-up to that article, CSI sent UCI a records request under the California Public Records Act (CPRA) requesting Iloh’s postpublication communications with the journals and UCI. Iloh petitioned for a writ of mandate, declaratory relief, and injunctive relief against UCI to prevent disclosure of her communications, and later added CSI as a real party in interest. She then filed a motion for preliminary injunction to prevent disclosure. Meanwhile, CSI filed a motion to strike Iloh’s petition under the anti-SLAPP (strategic lawsuit against public participation) statute. The Court of Appeal’s first opinion in this case concerned Iloh’s motion for preliminary injunction. The trial court denied that motion on the grounds that Iloh had not established a likelihood of prevailing on the merits, and the Court affirmed that order. In this case, the Court considered CSI’s anti-SLAPP motion. The trial court denied the motion, finding that although protected activity may have led to the petition, it was not the “basis” for the petition. To this, the Court disagreed: in issuing the CPRA request, CSI was engaging in newsgathering so it could report on matters of public interest, such as how a public university funded largely by taxpayer dollars resolved quality or integrity problems in its professors’ publications. CSI was therefore engaged in protected activity when it issued the CPRA request. Iloh filed her petition for mandamus relief to prevent UCI from complying with the CPRA request. “This is the type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if Iloh cannot demonstrate a probability of prevailing on her petition.” The Court of Appeal found the trial court had not performed the second prong of the anti-SLAPP analysis. Therefore, the Court reversed the order denying CSI’s anti-SLAPP motion and remanded this case with directions that the trial court consider prong two of the anti-SLAPP statute. View "Iloh v. Regents of the University of California" on Justia Law

The Supreme Court affirmed the judgment of the trial court granting Defendant's motion to dismiss the underlying complaint filed by Port of Louisville for defamation and professional malfeasance, holding that Port of Louisville had no legally recognized relationship with R. Wayne Stratton, CPA and Jones, Nale & Mattingly PLC (collectively, Stratton), and therefore, Stratton did not owe the Port of Louisville any duty.Louisville and Jefferson County Riverport Authority filed a lawsuit seeking to terminate Port of Louisville's lease based on allegations that Port of Louisville breached the parties' lease The action was stayed while the claims were referred to an arbitrator, who found that Port of Louisville had not breached the lease. Based on what occurred during the arbitration the Port of Louisville brought a complaint against Stratton for defamation and professional malfeasance. The trial court granted Stratton's motion to dismiss, and the court of appeals affirmed. The Supreme Court affirmed, holding that Port of Louisville had no legally recognized relationship with Stratton that would cause Stratton to owe it a duty. View "New Albany Main Street Properties, LLC v. R. Wayne Stratton, CPA" on Justia Law

In this professional malpractice action, the Supreme Court overruled Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky. 1994), and its progeny insofar as they hold that, for a non-litigation legal malpractice claim, a claimant's damages are not irrevocable and non-speculative until the claimant knows the exact dollar amount of damages he or she incurred because of the malpractice, holding that Broadbent was wrongly decided.Plaintiff filed the underlying professional malpractice claim against Defendants for negligently providing her poor legal advice regarding a business she co-owned. The trial judge granted summary judgment for Defendants on the ground that Plaintiff's legal harm did not become "irrevocable and non-speculative" sufficient to trigger Ky. Rev. Code 413.245 until July 2017, and therefore, Plaintiff's complaint was time-barred. The court of appeals affirmed. The Supreme Court affirmed on slightly different grounds, holding (1) because Broadbent has led to inconsistencies in jurisprudence regarding when damages are considered irrevocable and non-speculative for a professional malpractice claim, Broadbent and its progeny are overruled; and (2) for a non-litigation legal malpractice claim, a claimant's damages are considered irrevocable and non-speculative when the claimant is reasonably certain that damages will indeed flow from the defendant's negligent act. View "Wolfe v. Kimmel" on Justia Law

Titus’s solo medical practice, in its last 13 months, earned $1.1 million by distributing more than 20,000 prescriptions for Schedule II drugs. Titus often did only cursory physical examinations before prescribing opioids. He kept prescribing drugs despite signs that his patients were diverting or abusing them. At least two of Titus’s patients overdosed. Other doctors filed professional complaints. Titus closed his practice. Federal agents raided the homes of Titus and two of his employees and found thousands of patient files. Titus was indicted on 14 counts of unlawfully dispensing and distributing controlled substances (based on 14 prescriptions) and maintaining drug-involved premises, 21 U.S.C. 841(a)(1), (b)(1)(C), 856(a)(1).The government's statistician, using the Prescription Monitoring Program, identified 1,142 patients for whom Titus had prescribed controlled drugs, drew a random sample of 300 patients, and extrapolated to conclude that Titus had provided 29,323 controlled substance prescriptions to 948 patients with at least one inconsistent drug test and 1,552 such prescriptions to 352 patients he had already discharged from his practice. The government’s medical expert reviewed 24 of those files and determined that Titus had written illegal prescriptions for 18 of the patients.The district court held Titus responsible for at least 30,000 kilos, citing “general trial evidence” and extrapolating from the 24-file sample. The Third Circuit affirmed Titus’s convictions but vacated his 240-month sentence. The government failed to prove that extrapolating from a small sample satisfied its burden to prove the drug quantity by a preponderance of the evidence. View "United States v. Titus" on Justia Law

Pretrial detainee Wilson complained to Philadelphia Federal Detention Center medical staff about a lump on his testicle in November 2017. They allegedly stated that such a lump was probably cancerous. Wilson subsequently complained that his condition worsened but received no further treatment. Wilson was transferred to Bureau of Prisons custody, where a urologist determined in February 2018 that the lump was cancerous. Wilson's right testicle was surgically removed. Wilson believed that if his cancer had been addressed earlier, treatment would not have involved chemotherapy and surgery.Wilson alleged medical negligence under the Federal Tort Claims Act (FTCA). The court granted extensions for Wilson (pro se) to act on Pennsylvania Rule 1042.3, which requires medical malpractice plaintiffs to certify either that they have expert support for their claims or will proceed without an expert. Wilson explained that he wanted an expert but conceded the impossibility of obtaining one during the pandemic prison lockdowns. He stated that his medical records would demonstrate that his injury “was not inevitable" and specifically identified documents as discoverable material to substantiate his allegations, The court granted the government summary judgment stating that, while a factfinder could find without expert testimony that the delay in treatment was unreasonable, the issue of whether the delay caused the need to remove Wilson’s testicle required expert testimony.The Third Circuit reversed, finding that the FTCA does not incorporate Rule 1042.3. Wilson did not otherwise have an adequate opportunity to seek out an expert or conduct discovery due to his unique position as a pro se inmate during the pandemic. View "Wilson v. United States" on Justia Law

Plaintiffs appealed a trial court’s grant of summary judgment in favor of defendant on their legal-malpractice and Vermont Consumer Protection Act (VCPA) claims. Mongeon Bay Properties, LLC (MBP) owned property abutting Lake Champlain in Colchester, Vermont, and leased the property to Malletts Bay Homeowner’s Association, Inc. Under the lease, the Association had the obligation to keep the property in good condition. In 2011, following major erosion damage on a portion of the embankment on the lakefront, MBP’s manager notified the Association it was in default for failing to maintain the property and gave the Association forty-five days to make specified, substantial repairs. After the Association failed to make the repairs, MBP filed a complaint against the Association seeking damages and to void the lease for the Association’s violation of its terms. The Association retained defendant Heilmann, Ekman, Cooley & Gagnon, Inc. In the following months, the Association took steps to address MBP’s complaints. However, following a bench trial, the trial court concluded that the Association breached the lease and was in default but declined to grant MBP’s request for lease forfeiture. Instead, it awarded MBP damages for remediation and attorney’s fees and costs. Both parties appealed. The Vermont Supreme Court reversed the trial court’s decision, concluding that the Association breached the lease and that MBP was entitled to termination of the lease. Ultimately, the lease was terminated, and the Association’s members were evicted. Members then sued the Association, alleging that it was negligent in its administration of the provisions of the lease requiring it to keep the property in good condition. Members and the Association settled in 2018. As part of the settlement, the Association assigned members its right to sue defendant for legal malpractice. The Association and members filed a complaint against defendant in the instant case in December 2019, alleging legal malpractice and a violation of the VCPA. The crux of their legal-malpractice claim is a lost opportunity to settle. They proposed that, had defendant tried to settle, the Association and MBP would have likely agreed to terms involving repairs and payment of MBP’s attorney’s fees thus avoiding lease termination and eviction of the Association’s members. The Vermont Supreme Court concluded summary judgment was appropriate on the legal-malpractice claim but not on the VCPA claim, and thus reversed and remanded. View "Mansfield, et al. v. Heilmann, Ekman, Cooley & Gagnon, Inc." on Justia Law

The Hearing Panel of the Georgia Judicial Qualifications Commission (JQC) recommended that Gerald Johnson be removed from office for violating Rules 1.1, 1.2 (A), and 1.2 (B) of the Georgia Code of Judicial Conduct (“CJC”). Johnson, however, submitted his resignation to Governor Kemp shortly after the Hearing Panel filed its Report and Recommendation. Removal from office was the only sanction the JQC seeks, and the Georgia Supreme Court could not remove a former judge from an office he no longer holds. Accordingly, this matter was dismissed. View "Inquiry concerning Judge Gerald Johnson" on Justia Law