Justia Legal Ethics Opinion Summaries

The Navy began a program to design and build littoral combat ships (LCS) and issued a request for proposals. During the initial phase of the LCS procurement, FastShip met with and discussed a potential hull design with government contractors subject to non-disclosure and confidentiality agreements. FastShip was not awarded a contract. FastShip filed an unsuccessful administrative claim, alleging patent infringement. The Claims Court found that the FastShip patents were valid and directly infringed by the government. The Federal Circuit affirmed. The Claims Court awarded FastShip attorney’s fees and expenses ($6,178,288.29); 28 U.S.C. 1498(a), which provides for a fee award to smaller entities that have prevailed on infringement claims, unless the government can show that its position was “substantially justified.” The court concluded that the government’s pre-litigation conduct and litigation positions were not “as a whole” substantially justified. It unreasonable for a government contractor to gather information from FastShip but not to include it as part of the team that was awarded the contract and the Navy took an exceedingly long time to act on FastShip’s administrative claim and did not provide sufficient analysis in denying the claim. The court found the government’s litigation positions unreasonable, including its arguments with respect to one document and its reliance on the testimony of its expert to prove obviousness despite his “extraordinary skill.” The Federal Circuit vacated. Reliance on this pre-litigation conduct in the fee analysis was an error. View "FastShip, LLC v. United States" on Justia Law

Two counties sued Sherwin-Williams in state court, seeking abatement of the public nuisance caused by lead-based paint. Anticipating suits by other counties, Sherwin-Williams sued in federal court under 42 U.S.C. 1983. Sherwin-Williams claimed that “[i]t is likely that the fee agreement between [Delaware County] and the outside trial lawyers [is] or will be substantively similar to an agreement struck by the same attorneys and Lehigh County to pursue what appears to be identical litigation” and that “the Count[y] ha[s] effectively and impermissibly delegated [its] exercise of police power to the private trial attorneys” by vesting the prosecutorial function in someone who has a financial interest in using the government’s police power to hold a defendant liable. The complaint pleaded a First Amendment violation, citing the company’s membership in trade associations, Sherwin-Williams’ purported petitioning of federal, state, and local governments, and its commercial speech. The complaint also argued that the public nuisance theory would seek to impose liability “that is grossly disproportionate,” arbitrary, retroactive, vague, and “after an unexplainable, prejudicial, and extraordinarily long delay, in violation of the Due Process Clause.” The Third Circuit affirmed the dismissal of the suit. Sherwin-Williams failed to plead an injury in fact or a ripe case or controversy because the alleged harms hinged on the County actually filing suit. View "Sherwin Williams Co. v. County of Delaware" on Justia Law

Paul Copenbarger and Kent McNaughton formed Newport Harbor Offices & Marina, LLC (NHOM) in 2003 to acquire an office building in Newport Beach. McNaughton and Copenbarger were equal owners and the sole members of NHOM. Copenbarger delegated to McNaughton “management of the day-to-day operations of the commercial real property owned by the Company,” and McNaughton delegated to Copenbarger “management and handling of all legal affairs of the Company.” These delegations were “[s]ubject to revocation” by the delegating members. McNaughton later leased several office suites in NHOM’s building for his separate real estate business. McNaughton signed the rental agreement on behalf of both himself and NHOM. In early 2008, after learning McNaughton had unilaterally increased his monthly NHOM management payments to himself, Copenbarger revoked McNaughton’s delegated authority to manage NHOM’s day-to-day operations. In response, McNaughton stopped paying rent to NHOM. NHOM hired attorney Elaine Alston and her firm, Alston, Alston & Diebold (collectively, Alston), to file unlawful detainer actions against McNaughton. In June 2008, while the unlawful detainer actions and arbitration were pending, McNaughton formally revoked Copenbarger’s delegated right to manage NHOM’s legal affairs. He also filed a motion to compel arbitration of the lease dispute. The arbitrator issued an interim award in 2011, finding largely in Copenbarger’s favor. He further found McNaughton had breached his leases with NHOM by improperly withholding rent. Copenbarger petitioned to confirm the arbitration award with the trial court, and McNaughton filed a motion to disqualify Alston. The court denied McNaughton’s disqualification motion, granted Copenbarger’s petition to confirm the arbitration award, and confirmed the award in all respects. McNaughton filed an action seeking declaratory relief against Alston, "vaguely alleging" Alston was impermissibly representing NHOM in litigation matters now adverse to McNaughton. The trial court sustained Alston's demurrer without leave and granted her anti-SLAPP motion, citing the collateral estoppel effect of the first case. Alston then filed the underlying malicious prosecution action against McNaughton and his attorneys, who each filed anti-SLAPP motions. The Court of Appeal affirmed that portion of the trial court's order granting McNaughton's anti-SLAPP motion as to Alston's fraud claim; the portion of the order granting McNaughton’s and his attorney's anti-SLAPP motions as to Alston’s malicious prosecution claim was reversed. The matter was remanded for further proceedings. View "Alston v. Dawe" on Justia Law

Terrance Fredericks appealed a district court order dismissing his lawsuit against the Vogel Law Firm and its attorneys Monte Rogneby and Maurice McCormick, McCormick Inc., and Northern Improvement Company. In the earlier (2016) lawsuit Northern Improvement and McCormick, individually and on behalf of Native Energy, sued Fredericks for breaching contractual and fiduciary duties. Fredericks counterclaimed, alleging McCormick breached fiduciary duties. The jury found that McCormick and Northern Improvement did not breach duties owed to Native Energy or Fredericks. Vogel represented McCormick and Northern Improvement in the 2016 lawsuit. Fredericks sought to disqualify Vogel after testimony revealed Vogel may have indirectly provided services to Native Energy in 2010 and 2011 when it reviewed certain agreements that were later executed by Native Energy and third-party oil companies. The district court declared a mistrial and disqualified Vogel from representing McCormick. McCormick moved for reconsideration of the court’s decision to disqualify Vogel. After a hearing, the court did not disqualify Vogel, ruling it had not represented Native Energy by reviewing the agreements. In December 2017, Fredericks moved to add Vogel as a third-party defendant, claiming it committed legal malpractice by breaching fiduciary duties owed to Native Energy and Fredericks. Fredericks’ motion also sought to amend his counterclaims against McCormick and Northern Improvement. In April 2018, the district court allowed Fredericks to amend his claims against McCormick and Northern Improvement, but denied his motion to join Vogel as a third-party defendant. In February 2019, Fredericks, individually and derivatively on behalf of Native Energy Construction, filed the instant lawsuit against Vogel, McCormick, and Northern Improvement. Fredericks’ complaint alleged that Vogel had a conflict of interest because it had provided legal services to Native Energy in 2010 and 2011, and its current representation of McCormick was adverse to Native Energy and Fredericks. Fredericks alleged Vogel committed legal malpractice by disclosing Native Energy’s and Fredericks’ confidential information to McCormick. Fredericks also alleged McCormick and Northern Improvement breached fiduciary duties owed to Native Energy and Fredericks. The district court concluded res judicata barred Fredericks’ claims. Finding no reversible error in that decision, the North Dakota Supreme Court affirmed. View "Fredericks, et al. v. Vogel Law Firm, et al." on Justia Law

Quincy’s Prevagen® dietary supplement is sold through brick‐and‐mortar stores and online. Ellishbooks, which was not authorized to sell Prevagen® products, sold dietary supplements identified as Prevagen® on Amazon.com, including items that were in altered or damaged packaging; lacked the appropriate markings that identify the authorized retail seller; and contained Identification and security tags from retail stores. Quincy sued under the Lanham Act, 15 U.S.C. 1114. The court entered a $480,968.13 judgment in favor of Quincy, plus costs, and permanently enjoined Ellishbooks from infringing upon the PREVAGEN® trademark and selling stolen products bearing the PREVAGEN® trademark. The Seventh Circuit affirmed and subsequently awarded $44,329.50 in sanctions under Federal Rule of Appellate Procedure 38. Ellishbooks’s arguments “had virtually no likelihood of success” on appeal and it appeared that Ellishbooks attempted to draw out the proceedings for as long as possible. View "Quincy Bioscience, LLC v. Ellishbooks" on Justia Law

Jonathon Frantz appealed a district court’s award of attorney fees entered against him and his clients, jointly and severally, as a sanction for frivolous conduct. This appeal arose from an easement dispute among family members. The land at issue was split into multiple parcels: the Tracy Parcel, the Mathis/Roll Parcel, and the Osborn Parcel. Plaintiffs Brook Tracy and Travis Mathis owned the Tracy Parcel; Plaintiffs Gailord “Cowboy” Mathis, Brook Tracy, Laura Roll, and Rebecca Stafford owned the Mathis/Roll Parcel; and David and Naomi Osborn owned the Osborn Parcel. In 2018, Plaintiffs filed a complaint against the Osborns. Frantz was Plaintiffs’ attorney. Plaintiffs claimed that more than thirty years ago they “constructed/placed a home” on the Tracy Parcel, “constructed/placed a cabin” on the Mathis/Roll Parcel, and “created a driveway” through the Osborn Parcel to access their respective properties. Plaintiffs also claimed that for more than thirty years they had openly and continuously used the driveway over the Osborn Parcel for access to the nearest public right-of-way, Highland Drive, which was the only reasonable way to reach their respective properties. Based on this use, Plaintiffs claimed that they had an easement by necessity, an easement by implication, or a prescriptive easement across the Osborn Parcel along the existing driveway. Accordingly, Plaintiffs sought a judgment from the district court declaring their rights in the driveway. The trial court denied a preliminary injunction for two reasons: (1) “the allegations in the complaint and the motion contain[ed] gross exaggerations, if not falsehoods” and “the credibility of all of the plaintiffs” was questionable; and (2) Plaintiffs could not establish entitlement to the relief demanded because they came to the hearing unprepared to support the easement theories they advanced with any competent evidence. The Osborns moved for attorney fees, leaving it to the trial court's discretion to award Rule 11 sanctions "if the [c]ourt determines that this motion was pursued frivolously." On appeal, Frantz contended the district court abused its discretion in awarding attorney fees against him personally because it: (1) failed to follow the procedural requirements set out in Idaho Code section 12-123; and (2) erroneously found that he engaged in frivolous conduct. After review, the Idaho Supreme Court concluded this matter did not present a justiciable controversy because the judgment was satisfied and Frantz did not preserve his right to appeal pursuant to Idaho Code section 10-1115. Accordingly, the Court dismissed Frantz’s appeal because the issues before the Court were moot. View "Frantz v. Osborn" on Justia Law

In 1995, 17 plaintiffs sued the Highsmiths on several promissory notes. The parties entered into a stipulation; a single judgment was entered in favor of the plaintiffs in various amounts. In 2005, an attorney representing the plaintiffs renewed the judgment using the standard Judicial Council form. The attorney subsequently died. When the judgment was again due to be renewed in 2015, one of the plaintiffs (Bisordi) did so, again using the standard form. Defendants moved to vacate the 2015 renewal, arguing that it was void because to the extent one plaintiff purported to file it on behalf of the others, doing so constituted the unauthorized practice of law. The trial court agreed. The court of appeal reversed. Bisordi was acting in a “clerical” capacity, or as a “scrivener.” The statutory renewal of judgment is an automatic, ministerial act accomplished by the clerk of the court; entry of the renewal of judgment does not constitute a new or separate judgment. Bisordi did not hold himself out as any kind of attorney, offer the other creditors any legal advice, or resolve for them any “difficult or doubtful legal questions” that might “reasonably demand the application of a trained legal mind.” View "Altizer v. Highsmith" on Justia Law

The Supreme Court reversed the order of the Nevada Commission on Judicial Discipline that imposed a public reprimand on a family court judge, holding that the the Commission misapplied the statutes governing judicial discipline and, accordingly, erred in imposing a public reprimand. The Commission imposed a public reprimand on Clark County Family Court Judge Rena Hughes after Hughes entered an order holding a mother in contempt and changing custody of a minor child from the mother to the father. The Commission concluded that Judge Hughes had violated canons of the Code of Judicial Conduct because the change in custody was purportedly entered as a contempt sanction. The Supreme Court reversed, holding (1) because the Commission found neither a knowing or deliberate violation of a canon of the Code of Judicial Conduct nor aggravating factors the Commission imposed discipline contrary to the statutes governing judicial discipline; (2) the Commission erred in instituting disciplinary proceedings where relief could be found in the appeals process; and (3) the Commission erred in interpreting Judge Hughes' orders and relying inappropriately on court minutes. View "In re Honorable Rena G. Hughes" on Justia Law

Applicant Lewis Birt successfully completed Vermont’s Law Office Study (LOS) Program in April 2000. Thereafter, applicant sat for the Vermont bar exam four times between 2002 and 2004, failing each time. In July 2019, applicant filed an application with the Vermont Board of Bar Examiners (BBE) to sit for the February 2020 bar exam. Licensing Counsel reviewed the application and raised concerns about both the length of time between applicant’s completion of the LOS Program, the 2019 application, and the number of applicant’s prior unsuccessful examination attempts. In light of those concerns, Licensing Counsel asked applicant if he wished to go forward with the application. Applicant elected to do so, and, in November 2019, supplied additional information directed at the concerns Licensing Counsel raised. At its December 2019 meeting, the BBE decided to deny applicant’s request to sit for the 2020 bar examination. In doing so, it relied on Rule of Admission to the Bar of the Vermont Supreme Court 9(b)(1), which requires an applicant to sit for the bar exam within five years of completing the LOS Program unless the time is extended for good cause, and Rule 9(b)(4), which limits an applicant to four attempts to pass the examination unless the BBE waives the limitation upon a proper showing. The Vermont Supreme Court agreed with the BBE's finding that there was no cause to extend the five-year limit. Since his last exam in 2004, applicant worked as a musician, church residential real-estate manager, paralegal studies teacher for a for=profit school, and as a court reporter. Absent a waiver, applicant was deemed ineligible to sit for the 2020 bar examination because he did not meet the requirements of Rule 9(b)(1), and the Supreme Court concurred his application was properly denied. View "In re Lewis Y. Birt" on Justia Law

ECT sued ShoppersChoice for infringement of its 261 patent, directed “to systems and methods that notify a party of travel status associated with one or more mobile things. ShoppersChoice challenged claim 11 as patent-ineligible, 35 U.S.C. 101. ShoppersChoice moved to join a patent eligibility hearing set in a parallel lawsuit, in which ECT alleged claim 11 infringement against other companies. The court conducted a consolidated hearing and invalidated claim 11 as directed to the abstract idea of providing advance notification of the pickup or delivery of a mobile thing. The Federal Circuit affirmed, holding that “the claim only entails applying longstanding commercial practices using generic computer components and technology.” ShoppersChoice sought attorney fees, citing evidence that ECT sent standardized demand letters and filed repeat infringement actions to obtain low-value “license fees” and force settlements. Before the court ruled, a California District Court awarded attorney fees against ECT in another case related to the patent. The Federal Circuit vacated a holding that the case was not exceptional. A pattern of litigation abuses characterized by the repeated filing of patent infringement actions for the sole purpose of forcing settlements, with no intention of testing the merits of one’s claims, is relevant to a district court’s exceptional case determination. The court clearly erred by failing to consider the objective unreasonableness of ECT’s alleging infringement of claim 11 against ShoppersChoice. View "Electronic Communication Technologies, LLC v. ShoppersChoice.Com, LLC" on Justia Law