Justia Professional Malpractice & Ethics Opinion Summaries

Judge Jesse Burton of the Southern District of Coahoma County, Mississippi Justice Court, filed an affidavit claiming his former girlfriend had stolen money and personal property from him. Based on this affidavit, another justice court judge issued an arrest warrant for Judge Burton’s girlfriend, Regina Burt. But before the warrant was served, Judge Burton changed his mind and instructed the clerk’s office to rescind the warrant that the other judge had issued. As directed, the deputy clerk replaced Judge Burton’s girlfriend’s name on the warrant with Jane Doe and instructed the sheriff’s office not to execute it. Acting on a complaint from Burt, on August 29, 2018, the Mississippi Commission on Judicial Performance filed a formal complaint against Judge Burton, who cooperated and entered an agreed stipulation of facts with the Commission: Judge Burton agreed he committed misconduct when he ordered a deputy clerk to rescind his former girlfriend’s arrest warrant, and agreed he violated Canons 1, 2A, 2B, 3B(1), 3B(2), and 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97- 11-1. The parties’ agreement included the Commission’s recommended sanction of a public reprimand and $500 fine. After review, the Mississippi Supreme Court agreed with the Commission’s findings and recommended sanction. View "Mississippi Commission on Judicial Performance v. Judge Jesse Burton" on Justia Law

The Yakima County clerk was ordered by a superior court judge to procure a supplemental bond to maintain her elected office. The court warned that failure to comply would result in the court declaring the office vacant. The clerk sought a writ of prohibition from the Washington Supreme Court to prevent enforcement of the superior court's order. The Supreme Court denied the writ: the superior court judge did not exceed the court's jurisdiction by issuing the supplemental bond order; the clerk could have availed herself of "a plain, speedy and adequate remedy at law - an injunction. Thus, prohibition will not lie." View "Riddle v. Elofson" on Justia Law

The Supreme Court reversed the judgment of the district court granting summary judgment in favor of Defendant on the ground that Plaintiff's cause of action was time barred by the statute of limitations for professional negligence under Neb. Rev. Stat. 25-222, holding that the district court erred in concluding that a massage therapist is a professional under section 25-222 and in granting summary judgment on that ground.Plaintiff, a customer of Defendant, a massage therapy establishment, alleged that Defendant's employee, a licensed massage therapist, improperly compressed a nerve on Plaintiff's neck, causing her to become unconscious, fall out of the massage chair, and sustain injuries. Plaintiff filed suit against Defendant, alleging that her injuries were caused by Defendant's negligence as the massage therapist's employer. The district court dismissed the complaint, concluding that Plaintiff's claim was time barred by the application of section 25-222. The Supreme Court reversed, holding that the district court erred by finding that massage therapy is a "profession" within the meaning of section 25-222. The Supreme Court remanded the cause to the district court. View "Wehrer v. Dynamic Life Therapy & Wellness, P.C." on Justia Law

The Supreme Court affirmed the judgment of the district court granting Defendants' motions to dismiss Plaintiff's petition alleging that Defendants - medical providers and facilities - committed negligence and medical malpractice resulting in a patient's wrongful death, holding that Plaintiff failed to meet the evidentiary standard required when responding to a motion to dismiss with facts outside the pleadings.In dismissing Plaintiff's petition, the district court found that the petition was filed one day after the statute of limitations had expired. On appeal, Plaintiff argued that her attorney electronically submitted the petition for filing before the statute of limitations ran and promptly responded when the petition was returned because of an electronic filing issue. The Supreme Court affirmed, holding that no evidence in the record supported Plaintiff's factual assertion that her counsel timely submitted the same petition as the one eventually file stamped by the clerk. Therefore, the Court could not reach the substance of Plaintiff's argument that a document is filed for purposes of the statute of limitations when uploaded to the electronic filing system rather than when the clerk of court accepts and file stamps it. View "Lambert v. Peterson" on Justia Law

Over seven years, Dr. Greenspan referred more than 100,000 blood tests to Biodiagnostic Laboratory, which made more than $3 million off these tests. In exchange, the Lab gave Greenspan and his associates more than $200,000 in cash, gifts, and other benefits. A jury convicted Greenspan of accepting kickbacks, 42 U.S.C. 1320a-7(b)(1)(A); using interstate facilities with the intent to commit commercial bribery, 18 U.S.C. 1952(a)(1), (3); honest-services wire fraud, 18 U.S.C. 1343, 1346; and conspiracy to do all of those things. The Third Circuit affirmed, characterizing the evidence of his guilt as overwhelming. The district court erred in instructing the jury that Greenspan had to “demonstrate” the prerequisites for an advice-of-counsel defense; in excluding as hearsay some of his testimony about that legal advice; in asking only Greenspan’s counsel, not Greenspan personally, whether he wished to speak at sentencing; and in limiting the scope of the defense to five particular agreements rather than all eight, but all of those errors were harmless. The court properly excluded evidence that the blood tests were medically necessary. That evidence was only marginally relevant and risked misleading the jury. View "United States v. Greenspan" on Justia Law

The Supreme Court reversed the judgments of the lower courts that, as a matter of law, a hospitalist owed no duty of care to a patient seeking to be admitted because no physician-patient relationship had been established, holding that there was sufficient evidence in the record to survive a summary judgment motion.A hospitalist denied a patient admission, and, three days later, the patient died. Plaintiff filed a professional negligence suit against the hospitalist and the hospital. The district court granted summary judgment for Defendants on the issue of duty, concluding that the relationship between the patient and the hospitalist did not create a doctor-patient relationship. The court of appeals affirmed. The Supreme Court reversed after noting that a physician-patient relationship is not a necessary element of a claim for professional negligence, holding (1) a physician owes a duty of care to a third party when the physician acts in a professional capacity and it is reasonably foreseeable that the third party will rely on the physician's acts and be harmed by a breach of the standard of care; and (2) it was reasonably foreseeable that the patient in this case would rely on the hospitalist's acts and be harmed by a breach of the standard of care. View "Warren v. Dinter" on Justia Law

Ace, a licensed physician, and Lesa Chaney owned and operated Ace Clinique in Hazard, Kentucky. An anonymous caller told the Kentucky Cabinet for Health and Family Services that Ace pre-signed prescriptions. An investigation revealed that Ace was absent on the day that several prescriptions signed by Ace and dated that day were filled. Clinique employees admitted to using and showed agents pre-signed prescription blanks. Agents obtained warrants to search Clinique and the Chaneys’ home and airplane hangar for evidence of violations of 21 U.S.C. 841(a)(1), knowing or intentional distribution of controlled substances, and 18 U.S.C. 1956(h), conspiracies to commit money laundering. Evidence seized from the hangar and evidence seized from Clinique that dated to before March 2006 were suppressed. The court rejected arguments that the warrants’ enumeration of “patient files” was overly broad and insufficiently particular. During trial, an alternate juror reported some “concerns about how serious[ly] the jury was taking their duty.” The court did not tell counsel about those concerns. After the verdict, the same alternate juror—who did not participate in deliberations—contacted defense counsel; the court conducted an in camera interview, then denied a motion for a new trial. To calculate the sentencing guidelines range, the PSR recommended that every drug Ace prescribed during the relevant time period and every Medicaid billing should be used to calculate drug quantity and loss amount. The court found that 60 percent of the drugs and billings were fraudulent, varied downward from the guidelines-recommended life sentences, and sentenced Ace to 180 months and Lesa to 80 months in custody. The Sixth Circuit affirmed, rejecting challenges to the constitutionality of the warrant that allowed the search of the clinic; the sufficiency of the evidence; and the calculation of the guidelines range and a claim of jury misconduct. View "United States v. Chaney" on Justia Law

David Calvert was disbarred for various ethical violations, including entering into an oral agreement with a client without complying with the requisite safeguards of Colorado Rule of Professional Conduct 1.8(a). After being disbarred, Calvert sued his former client, Diane Mayberry, for breach of that same oral agreement, claiming that there was a contract between them. The trial court granted Mayberry’s motion for summary judgment, and the court of appeals affirmed. On appeal to the Colorado Supreme Court, Calvert challenged: (1) whether an attorney who was found to have violated Rule 1.8(a) in a disciplinary proceeding was estopped from relitigating the same factual issues in a civil proceeding; (2) whether a contract between an attorney and a client entered into in violation of Rule 1.8(a) was enforceable; and (3) whether the trial court abused its discretion in awarding attorney’s fees against Calvert after finding his lawsuit groundless and frivolous. The Colorado Supreme Court declined the issue preclusion issue raised because Calvert conceded he could not relitigate whether he entered into an agreement with a client without meeting Rule 1.8(a)’s requirements. The Court held that when an attorney enters into a contract without complying with Rule 1.8(a), the contract was presumptively void as against public policy; however, a lawyer may rebut that presumption by showing that, under the circumstances, the contract does not contravene the public policy underlying Rule 1.8(a). Further, the Court held the trial court did not abuse its discretion in awarding attorney’s fees at the trial level because the record supported the finding that the case was groundless, frivolous, and brought in bad faith. But as to attorney’s fees at the appellate level, because the questions of whether issue preclusion applied in this proceeding and whether a contract made in violation of Rule 1.8(a) is void as against public policy were legitimately appealable issues, thereby making a grant of appellate attorney’s fees inappropriate. Therefore, the Supreme Court affirmed the court of appeals as to the merits on other grounds, affirmed the award of attorney’s fees at the trial level, and reversed the court of appeals’ order remanding for a determination of appellate attorney’s fees. View "Calvert v. Mayberry" on Justia Law

The Debtors filed their bankruptcy petition in 2008. Grusin provided them legal advice before the filing and at the beginning of the bankruptcy case. Fullen filed the petition and represented them in the chapter 7 case. In 2011, the bankruptcy court granted the Trustee summary judgment in an adversary proceeding seeking to deny the Debtors’ discharge and disqualified both lawyers from further representation of the Debtors in that case. The Debtors hired new counsel, who obtained relief from the summary judgment order. Following a trial, in 2015, the bankruptcy court again denied the Debtors’ discharge. The Bankruptcy Appellate Panel affirmed. In 2012, the bankruptcy court granted CJV derivative standing to pursue a malpractice action on behalf of the estate against Grusin and Fullen. Malpractice complaints were filed in the bankruptcy court and in Tennessee state court. In 2014, CJV filed another adversary proceeding, seeking declaratory relief that the malpractice claims constituted property of Debtors’ estate. The Bankruptcy Appellate Panel affirmed the bankruptcy court in holding that the malpractice action for denial of debtors’ discharges based on errors and omissions contained in a bankruptcy petition, as well as pre and post-petition legal advice, was not property of the debtors’ bankruptcy estate. There was no pre-petition injury; the Debtors were injured by that negligence when their discharges in bankruptcy were denied. View "In re Blasingame" on Justia Law

Judge Jimmy McGee served as a justice court judge for Alcorn County, Mississippi, Post Two. Judge McGee failed to issue final orders on civil matters after conducting hearings and holding cases in abeyance. Furthermore, Judge McGee was charged with retaliatory action against former Alcorn County Justice Court Clerk Jone Dixon based on Judge McGee’s appearance before the Alcorn County Board of Supervisors during executive session. But after further investigation and review of affidavits provided by Judge McGee, the Commission determined that Judge McGee had not engaged in any form of retaliation. The Mississippi Commission on Judicial Performance filed a formal complaint against Justice Court Judge McGee; he stipulated that his conduct violated the following canons of the Code of Judicial Conduct: Canons 1, 2A, 3A, 3B(1), 3B(2), 3B(8), and 3C(1). Judge McGee also stipulated that such actions constituted misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to article 6, section 177A, of the Mississippi Constitution. The Commission and Judge McGee agreed to a proposed recommendation of a public reprimand and a $1,683.34 fine. The Commission and Judge McGee filed a joint motion for approval of the recommendation with this Court. After consideration, the Mississippi Supreme Court affirmed the Commission’s recommendation of a public reprimand and $1,683.34 fine. View "Mississippi Commission on Judicial Performance v. McGee" on Justia Law