Justia Legal Ethics Opinion Summaries

Retired superior court judges who have participated in the Temporary Assigned Judges Program (TAJP) challenged recent changes to the program made by the Chief Justice, including limits on the duration of service in the program with some exceptions. Plaintiffs, claiming these changes discriminate against “older” retired judges, filed suit, alleging disparate impact age discrimination under the Fair Employment and Housing Act. The trial court dismissed without leave to amend on the ground legislative immunity bars the suit.The court of appeal reversed and remanded to allow the plaintiffs to amend their complaint. Legislative immunity shields the Chief Justice and the Judicial Council from suit, regardless of the nature of the relief sought, to the extent plaintiffs’ discrimination claim is based on the Chief Justice’s promulgation of changes to the TAJP. Legislative immunity does not foreclose suit to the extent the claim is based on the defendants’ enforcement of the challenged provisions through individual judicial assignments. Judicial immunity applies to the Chief Justice’s assignment of individual judges under the new TAJP provisions, and while judicial immunity forecloses monetary relief, it does not foreclose prospective declaratory relief. The plaintiffs’ current allegations are insufficient but a disparate impact age discrimination claim can be based on disparate impact on an older subgroup within the class of persons protected under the Act--employees 40 years of age and older. View "Mahler v. Judicial Council of California" on Justia Law

Appellant Joseph Hurley represented Clay Conaway, a former college athlete charged with raping six women. After the case attracted media attention, the Superior Court entered an order prohibiting counsel from making public comments except to the extent permitted under Rule 3.6 of the Delaware Lawyers Rules of Professional Conduct (“DLRPC”). Hurley twice spoke to reporters while the order was in force. The court held that both sets of comments violated the order and found Hurley in civil contempt of court. On appeal, Hurley argued the Superior Court erred by holding that there was a substantial likelihood his comments would materially prejudice pending proceedings. Finding no reversible error, the Delaware Supreme Court upheld the contempt order. View "In re Joseph Hurley, Esq." on Justia Law

It is improper for counsel to assert or imply facts not in evidence that counsel knows could be refuted by evidence the court has excluded; it is also improper to argue facts not in the record, and to continue to argue those facts after the court has instructed counsel to stop.The Court of Appeal affirmed the trial court's order granting defendant's motion for a new trial based on attorney misconduct during closing argument in this vehicle collision case. The trial court found, among other misconduct, that defense counsel falsely argued excluded evidence did not exist and argued facts outside the record. The court concluded that the trial court did not abuse its discretion in granting defendant's motion for a new trial on causation and damages, concluding that defense counsel's improper arguments resulted in a miscarriage of justice warranting a new trial. View "Jackson v. Park" on Justia Law

In 2006, plaintiff Brenda Gilbert divorced her husband, Monroe Gilbert, who acquired sole possession of the family’s vehicle, which was still registered in plaintiff’s name. In April 2014, Monroe informed plaintiff that he had to report to the Woodland Park Municipal Court (WPMC) regarding many outstanding traffic tickets; the court summonses were issued in plaintiff’s name. On April 15, 2014, plaintiff met Monroe and his attorney, defendant Kenyatta Stewart, at WPMC. The matter was adjourned, and plaintiff, defendant, and Monroe discussed the best way to resolve the outstanding summonses. Plaintiff did not retain defendant as her attorney or request that he represent her; nor did defendant bill plaintiff or enter into a fee agreement with her. Nevertheless, he indicated to plaintiff that the optimal resolution would be for her to plead guilty to the charges because Monroe was at greater risk of license suspension due to his poor driving record. Plaintiff worked in the Passaic probation department since 1994. The parties disputed the extent to which defendant advised plaintiff of certain risks associated with the plea agreement. It was undisputed that defendant failed to advise plaintiff of the impact that a guilty plea might have on her public employment. In July 2014, plaintiff, through different counsel, challenged her conviction; ultimately the disposition against her was vacated, her fines were repaid to her, and the charges against plaintiff were dismissed. Plaintiff ultimately filed a complaint against defendant, alleging he breached a duty of care by “engaging in a clear conflict of interest” and urging her to enter into “unwarranted guilty pleas.” Defendant moved for summary judgment, arguing that he was not the proximate cause of plaintiff’s harm because any discipline from her employer resulted from her failure to notify, not her conviction. Judgment was entered in defendant's favor. The New Jersey Supreme Court reversed, finding a jury should have decided whether defendant’s legal advice was a substantial factor in plaintiff's demotion and suspension. View "Gilbert v. Stewart" on Justia Law

In 2018, plaintiffs filed suit against Missouri under Section 5 of the National Voter Registration Act of 1993. Plaintiffs ultimately obtained a preliminary injunction requiring Missouri to send voter registration forms to thousands of Missouri citizens and to make certain changes to its voter registration procedures in time for the 2018 midterm elections. In 2019, the parties entered into a settlement agreement that resolved all remaining issues except for attorney's fees. The district court noted that Missouri did not dispute plaintiffs' status as the prevailing party, and therefore granted plaintiffs' motion for attorney's fees a few months later and awarded plaintiffs $1,143,627.96 in fees and $27,484.15 in litigation expenses.The Eighth Circuit affirmed, concluding that the district court did not abuse its discretion in finding that plaintiffs reasonably expended 3,251.38 hours on this matter. The court also concluded that the district court sufficiently considered the Johnson factors in determining the reasonableness of the lodestar amount and did not abuse its discretion. View "League of Women Voters of Missouri v. Ashcroft" on Justia Law

The Consumer Financial Protection Bureau, the federal government’s primary consumer protection agency for financial matters under the 2010 Dodd-Frank Act, 12 U.S.C. 5511(a)–(b), lacks “supervisory or enforcement authority with respect to an activity engaged in by an attorney as part of the practice of law under the laws of a State in which the attorney is licensed.”The Bureau sued two companies and four associated lawyers that provided mortgage-assistance relief services to customers across 39 states. The firms had four attorneys at their Chicago headquarters and associated with local attorneys in the states in which they conducted business. The bulk of the firms’ work was performed by 30-40 non-attorneys (client intake specialists), who enrolled customers, gathered and reviewed necessary documents, answered consumer questions, and submitted loan-modification applications. The "specialists" and attorneys worked off scripts. The firms charged each customer a retainer, followed by recurring monthly fees. On average, the firms collected $3,375 per client. Customers paid separately for additional work, such as representation in foreclosure or bankruptcy, An attorney at headquarters reviewed each loan modification file and forwarded it to an attorney in the customer’s home state. The local attorneys were paid $25-40 for each task. Most reviews took five-10 minutes. Local attorneys almost never communicated directly with customers. One firm obtained loan modifications for 1,369 out of 5,265 customers; the other obtained loan modifications for 190 out of 1,116. The companies ceased operations in 2013.The district court partially invalidated sections of the attorney exemption and granted summary judgment against the defendants for charging unlawful advance fees, failing to make required disclosures, implying in their welcome letter to customers that the customer should not communicate with lenders, implying that consumers current on mortgages should stop making payments, and misrepresenting the performance of nonprofit alternative services. The tasks completed by the firms’ attorneys did not amount to the “practice of law.” The court ordered restitution and enjoined certain defendants from providing “debt relief services.” The Seventh Circuit agreed that the firms and lawyers were not engaged in the practice of law; further proceedings are necessary concerning remedies. View "Consumer Financial Protection Bureau v. Consumer First Legal Group, LLC" on Justia Law

Judge John W. Ouderkirk (Ret.) was the privately compensated temporary judge selected by petitioner, Angelina Jolie, and real party in interest, William Bradley Pitt, to hear their family law case. Jolie filed a statement of disqualification challenging Judge Ouderkirk based on his failure to disclose, as required by the California Code of Judicial Ethics, several matters involving Pitt's counsel in which Judge Ouderkirk had been retained to serve as a temporary judge. After the superior court ruled against Jolie, she petitioned for writ of mandate and supporting papers.The Court of Appeal granted the writ of mandate directing the superior court to vacate its order denying Jolie's statement of disqualification and to make a new order disqualifying Judge Ouderkirk. The court concluded that Judge Ouderkirk's ethical breach, considered together with the information disclosed concerning his recent professional relationships with Pitt's counsel, might cause an objective person, aware of all the facts, reasonably to entertain a doubt as to the judge's ability to be impartial. Therefore, the court concluded that disqualification is required. View "Jolie v. Superior Court of Los Angeles County" on Justia Law

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

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

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