Justia Legal Ethics Opinion Summaries

A putative nationwide class of current and former members sued MEF, a membership-based spa-services company, alleging that MEF increased fees in violation of the membership agreement. The parties settled. In exchange for the release of all claims against MEF, class members could submit claims for “vouchers” for MEF products and services. The district court approved the settlement as “fair, reasonable, and adequate” under FRCP 23(e).The Ninth Circuit vacated. If a class action settlement is considered a “coupon” under the Class Action Fairness Act (CAFA) additional restrictions apply to the settlement approval process. The court did not defer to the district court’s determination that the MEF vouchers were not coupons but applied a three-factor test, examining whether settlement benefits require class members “to hand over more of their own money before they can take advantage of” those benefits, whether the credit was valid only for “select products or services,” and how much flexibility the credit provided. The district court also failed to adequately investigate some of the potentially problematic aspects of the relationship between attorneys’ fees and the benefits to the class, which impacted the fairness of the entire settlement, not just attorneys’ fees. The district court did not apply the appropriate enhanced scrutiny; it failed to adequately address the three warning signs of implicit collusion. View "McKinney-Drobnis v. Massage Envy Franchising, LLC" on Justia Law

B. Reid Zeh filed a lawsuit alleging that the American Civil Liberties Union, Inc. (“ACLU”) had published a post on its blog containing defamatory statements asserting that Zeh, who was the public defender for misdemeanor cases in Glynn County, Georgia, had charged an indigent criminal defendant a fee for his public defense services. The ACLU moved to strike the defamation lawsuit pursuant to Georgia’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) statute. Zeh then filed two motions requesting discovery. The trial court denied the motion to strike without ruling on Zeh’s discovery motions, and the Court of Appeals affirmed the denial of the anti-SLAPP motion. The Georgia Supreme Court granted the ACLU's petition for certiorari to address what standard of judicial review applies in this situation and whether, under that standard, the trial court erred by denying the anti-SLAPP motion to strike. After applying the proper standard of review to the existing record, the Supreme Court concluded the trial court erred by denying the ACLU’s motion to strike. The Court therefore reversed the Court of Appeals’ decision upholding that ruling. But because the trial court failed to rule on Zeh’s requests for discovery, the case was remanded to the Court of Appeals with direction that it remand the case to the trial court to rule on the discovery motions and for further proceedings. View "American Civil Liberties Union, Inc. v. Zeh" on Justia Law

Moreci sustained work-related injuries assertedly caused by his use of scaffolding constructed by Scaffold Solutions. Moreci received workers’ compensation benefits, paid by Starstone Insurance. Moreci, while represented by the Boxer law firm, filed a personal injury action against third-party defendants, including Scaffold. Moreci settled the case. As part of the settlement, Moreci agreed to assume the defense of Scaffold for claims arising from Moreci’s accident and pay any resulting judgment. Before the dismissal of Moreci’s action, Starstone intervened, seeking reimbursement from the defendants for the benefits it had paid to Moreci. Boxer became associated co-counsel for Scaffold, which filed an answer to Starstone’s complaint in intervention.Starstone Insurance moved to disqualify Boxer, arguing conflict of interest. The trial court held Starstone had no standing to seek the disqualification of counsel and denied the motion. The court of appeal affirmed. Because disqualification would have no effect on the alleged harms, Starstone sought the wrong legal remedy by bringing a disqualification motion. Any harm to Scaffold or Moreci stemming from a breach of the duty of loyalty in any way by their attorneys is “of no concern” to Starstone. View "Moreci v. Scaffold Solutions, Inc." on Justia Law

In this California Fair Employment and Housing Act (FEHA) case, the Court of Appeal granted the petition for writ of mandate and directed respondent Los Angeles Superior Court to vacate its order awarding attorney fees to Charter and to conduct a new hearing to reconsider Charter's motion for attorney fees. At issue is whether an employer's arbitration agreement authorizes the recovery of attorney fees for a successful motion to compel arbitration of a FEHA lawsuit even if the plaintiff's opposition to arbitration was not frivolous, unreasonable or groundless.The court concluded that, because a fee-shifting clause directed to a motion to compel arbitration, like a general prevailing party fee provision, risks chilling an employee's access to court in a FEHA case absent Government Code section 12965(b)'s asymmetric standard for an award of fees, a prevailing defendant may recover fees in this situation only if it demonstrates the plaintiff's opposition was groundless. In this case, no such finding was made by the superior court in the underlying action before awarding real party in interest Charter its attorney fees after granting Charter's motion to compel petitioner to arbitrate his FEHA claims. View "Patterson v. Superior Court" on Justia Law

The court of appeal consolidated appeals from three attorneys’ fees motions by a judgment creditor (Wertheim) seeking over $800,000 for its efforts to enforce a 2009 judgment entered after a jury awarded it approximately $39,000. The court of appeal affirmed the denial of fees as to the appeal bond fee motion but reversed, in part, the denial of fees as to post-judgment enforcement fees. The court noted that even standing alone, these fee claims are striking in relation to the amount of the underlying judgment and also must be considered in light of the more than 40 appeals occasioned by the parties’ competing businesses in the last 12 years. The court concluded that the motion for post-judgment enforcement fees was timely but characterized Wertheim’s litigation strategy as “unnecessary and objectively unreasonable.” View "Wertheim, LLC v. Currency Corp." on Justia Law

The Supreme Court granted the petition of The Florida Bar to enjoin Respondents, TIKD Services, LLC and Christopher Riley (collectively TIKD) from engaging in the unauthorized practice of law, holding that TIKD was engaged in the unauthorized practice of law and was permanently enjoined from engaging in such acts in the future.The Bar filed a two-count petition against TIKD alleging that it engaged in the unauthorized practice of law and that it held itself out to the public as qualified to provide legal services. The referee filed a report recommending that the Supreme Court dismiss the Bar's petition with prejudice, concluding that TIKD was not engaged in the unauthorized practice of law. The Supreme Court disapproved of the referee's recommendation and ordered that TIKD was permanently and perpetually enjoined from engaging in the unauthorized practice of law in the State. View "Florida Bar v. TIKD Services LLC" on Justia Law

The law firm Hepworth Holzer, LLP (“Hepworth Holzer” or “the firm”), petitioned the Idaho Supreme Court for a writ of mandamus or prohibition, seeking relief from a district court order disqualifying it as counsel for Dr. Gary Tubbs in a personal injury lawsuit against Bogus Basin Recreational Association, Inc. (“Bogus Basin”). Bogus Basin was represented by Elam & Burke in the proceedings. Elam & Burke moved to disqualify Hepworth Holzer after an associate attorney who worked at Elam & Burke when Tubbs initiated his lawsuit went to work for Hepworth Holzer and assisted the firm on a memorandum in support of a motion to reconsider filed in the case. The district court granted Elam & Burke’s motion. The district court ordered that “[a]ny attorney associated with Hepworth Holzer, LLP, including [the associate attorney], are disqualified from any further representation of [Dr.] Gary Tubbs in this matter and from providing any information from its files after January 21, 2021, and cannot relay any information discussed or received about this case after January 21, 2021[,] to Tubbs or any new attorney/firm representing Tubbs.” Hepworth Holzer contended the district court’s disqualification and gag order was clearly erroneous and unconstitutional. Finding the district court erred in issuing its disqualification order, the Supreme Court granted Hepworth Holzer's request for mandamus relief. The disqualification and gag order were vacated; and a new judge was ordered to preside over further proceedings. View "Hepworth Holzer, LLP v. Fourth Judicial District" on Justia Law

The State of Louisiana alleged that in July 2015, defendant Walter Johnson, JaQuendas Octave, Jay Lyons, and Casey Johnson took jewelry, cell phones, wallets, money, and credit cards at gunpoint from Roussel’s Antiques on Airline Highway in Gonzales and from the store’s employees. In September 2015, the State charged defendant and the others with four counts of armed robbery committed with the use of a firearm. The State also charged defendant with possession of a firearm by a person convicted of certain felonies. Defendant’s trial was set for June 21, 2017, with a status hearing scheduled for April 17, 2017. However, defendant was not transported to court on April 17. The trial court reset trial for the week of January 22, 2018, and advised the parties that this was a special setting and no further continuances would be granted. For various reasons, such as witness unavailability, scheduling conflicts and other issues, none of which were attributable to the defense, trial was set for September 2019. After argument, the trial court granted defendant's motion to quash, finding the State had flaunted its authority to dismiss and reinstitute to, in effect, grant itself the continuance the trial court had denied, and that the State had done so as a dilatory tactic at defendant’s expense. While acknowledging that the unavailability of a material witness might ordinarily justify granting a continuance, the trial court determined that the witness unavailability was used a pretext and the State was simply unprepared for trial. The court of appeal reversed the trial court's ruling and remanded for further proceedings. The court of appeal found that the trial court had abused its discretion in granting the motion to quash because defendant was not prejudiced by the delay. The Louisiana Supreme Court reversed the court of appeal, finding the appellate court erred in determining that the trial court abused its discretion in granting defendant’s motion to quash. "Under the unusual circumstances presented, we can find no abuse of discretion when the record supports the trial court’s determination that the absence of the witness was a pretext and that the State was simply unprepared for trial." View "Louisiana v. Johnson" on Justia Law

Alevy was an owner, officer, and board member of Amusement, a real estate company, engaged in the ongoing Stern Litigation. In 2010, Alevy offered Missakian employment as in-house counsel at Amusement, including working on the Stern Litigation. Under the Oral Contract, Missakian would receive a salary of $325,000, and, after the Stern Litigation ended, Missakian would receive a bonus of $6,250 for each month he had worked on that litigation plus 10 percent of the recovery, excluding ordinary litigation costs. The parties exchanged multiple written drafts but never signed a written contract. Missakian left Amusement in 2014. The Stern Litigation settled months later. Amusement received $26 million. Missakian never received the Monthly Bonus or the Stern Litigation Bonus.A jury issued a verdict in favor of Missakian on the claims for breach of oral contract and promissory fraud and made special verdict findings in favor of Alevy on promissory fraud. The trial court granted judgment notwithstanding the verdict (JNOV) on Missakian’s promissory fraud claim against Amusement.The court of appeal reversed. The Oral Contract is void under Business and Professions Code section 6147, 2 which requires contingency fee agreements to be in writing. The jury’s special verdict on promissory fraud was inconsistent because it found Alevy did not make a false promise, but that Amusement (acting only through Alevy) did. Because the court cannot choose between the jury’s inconsistent responses, the court should have ordered a new trial. View "Missakian v. Amusement Industry, Inc." on Justia Law

Isaac Zafft was fatally shot when a marijuana greenhouse in which he was sleeping was being robbed. In 2014, Nathan Philbrook and Daniel Devencenzi stole marijuana from multiple marijuana farms and greenhouses Philbrook’s wife, Amber N., helped locate on Google Earth. In July, Philbrook invited defendant Finley Fultz to a marijuana theft with him and Devencenzi. Philbrook and defendant drove to California from Nevada in defendant’s truck and Devencenzi followed in his truck. Philbrook entered the greenhouse’s back door, while Devencenzi stayed outside the back door and, according to Philbrook, defendant walked to the front of the greenhouse. Zafft awoke to the sound of Philbrook’s presence and saw the laser sight attached to Philbrook’s AR-15 style handgun. Zafft ran out the front door of the greenhouse where defendant was located. Defendant shot five times, hitting Zafft. The group fled back to Nevada. Upon their return to Nevada, defendant admitted to Amber he delivered the fatal shots, and Philbrook made statements inculpating defendant as the shooter. During the pendency of defendant’s, Devencenzi’s, and Philbrook’s joint criminal prosecution, Devencenzi and Philbrook pled guilty in exchange for reduced sentences. The prosecution failed to inform defendant that those bargains were offered as package deals, contingent on both Devencenzi and Philbrook accepting the plea bargains and fulfilling the bargains’ terms for either to benefit. The prosecution also failed to inform defendant the offers were contingent upon Philbrook and Devencenzi including in a written factual statement that they and defendant participated in a robbery and defendant killed Zafft. When making those bargains, Devencenzi and Philbrook agreed to be interviewed by the prosecution, which the prosecution failed to audio record. Finally, the prosecution continued its investigation of the case against defendant during trial and did not disclose material it intended to use against him until shortly before it was to be offered into evidence. Based on the government’s conduct throughout the investigation and trial, the trial court made several credibility findings rejecting the prosecution’s innocent explanations for the constitutional violations. The trial court then dismissed the case against defendant finding there was no possibility he could receive a fair trial considering the nature of the evidence against him and the violations surrounding his accomplices’ pleas and interviews. The Court of Appeal concluded the trial court's finding was made in error: because the record demonstrated the trial court believed a fair trial could be had in the absence of the "Medina" error, it was appropriate to reverse the judgment and remand the matter to the trial court to "again tailor relief to neutralize the taint resulting from the prosecutor’s other misconduct." View "California v. Fultz" on Justia Law