Justia Legal Ethics Opinion SummariesArticles Posted in Alaska Supreme Court
Office of Public Advocacy v. Berezkin f/n/a Smith et al.
The Alaska Supreme Court granted the Office of Public Advocacy’s (OPA) petition for review of whether counsel provided through Alaska Legal Service Corporation’s (ALSC) pro bono program was counsel “provided by a public agency” within the meaning of Flores v. Flores, 598 P.2d 890 (Alaska 1979) and OPA’s enabling statute. The Supreme Court concluded such counsel was indeed “provided by a public agency” and affirmed the superior court’s order appointing OPA to represent an indigent parent in a child custody case. View "Office of Public Advocacy v. Berezkin f/n/a Smith et al." on Justia Law
Bunton v. Alaska Airlines, Inc.
An employee sued her former employer for wrongful termination. The employee died, but her attorney continued to litigate, negotiate, and mediate the case for another year before informing the court or opposing counsel of her death. The superior court concluded the attorney had committed serious ethical violations related to this delay and disqualified him from the case. Post-disqualification, the attorney filed a motion to substitute the personal representative of the employee’s estate as plaintiff. The superior court issued an order dismissing the case on several grounds. The Alaska Supreme Court found the court did not abuse its discretion by disqualifying the attorney and denying the motion for substitution he submitted. The superior court was correct to dismiss the case, as only one party remained, but the Supreme Court concluded granting summary judgment in favor of the former employer and supervisor was error. "The estate is not entitled to appeal the court’s refusal to enforce a draft settlement agreement signed by the employee before her death and does not have standing to appeal the sanctions imposed against the attorney. But because the estate was not allowed to participate as a party, we conclude that awarding affirmative relief against it was error." View "Bunton v. Alaska Airlines, Inc." on Justia Law
Kenneth P. Jacobus, P.C. v. Kalenka
After a conflict of interest between an attorney and a long-time client arose during settlement negotiations, the attorney filed a confidential motion with the superior court criticizing his client. The client discharged the attorney and hired new counsel. But the attorney continued to control the settlement funds and disbursed himself his fee, even though the amount was disputed by the client. The court found that the attorney’s actions had violated the rules of professional conduct and ordered forfeiture of most of his attorney’s fees. Finding no reversible error in that decision, the Alaska Supreme Court affirmed the superior court. View "Kenneth P. Jacobus, P.C. v. Kalenka" on Justia Law
Kenneth P. Jacobus, P.C. v. Kalenka
After a conflict of interest between an attorney and a long-time client arose during settlement negotiations, the attorney filed a confidential motion with the superior court criticizing his client. The client discharged the attorney and hired new counsel. But the attorney continued to control the settlement funds and disbursed himself his fee, even though the amount was disputed by the client. The court found that the attorney’s actions had violated the rules of professional conduct and ordered forfeiture of most of his attorney’s fees. Finding no reversible error in the superior court's order, the Alaska Supreme Court affirmed. View "Kenneth P. Jacobus, P.C. v. Kalenka" on Justia Law
Basey v. Alaska Dept. of Pub.Safety
Kaleb Basey, who was convicted of federal crimes, filed a federal civil rights lawsuit in January 2016 against several Alaska state troopers based on their actions during his investigation and arrest. In September, Basey submitted two public records requests to the Alaska State Troopers seeking various documents relating to the investigation of his case, including two troopers' disciplinary records. Basey's requests were promptly denied on the ground that the information pertained to pending litigation. Asking for reconsideration, Basey's request was again denied, again citing the pending litigation. Acting pro se, Basey appealed, and his appeal reached the Alaska Supreme Court. In 2017, the Supreme Court reversed a superior court's dismissal order, holding that neither disclosure exception the State used as grounds for resisting Basey's request had applied. Basey moved to compel production of the requested records in January 2018. The State responded by agreeing to produce certain records, denying the existence of others, and asserting that the requested disciplinary records were private personnel records exempt from disclosure. In a seonc trip to the Alaska Supreme Court, the issue before the Court was whether state employee disciplinary records were confidential “personnel records” under the State Personnel Act and therefore not subject to disclosure under the Alaska Public Records Act. To this, the Court concluded that, with one express statutory exception not relevant to this case, the answer was “yes.” View "Basey v. Alaska Dept. of Pub.Safety" on Justia Law
Bravo v. Aker
Plaintiffs-appellants were an adult daughter (believed to be incompetent) and her mother. After retaining counsel, the mother brought a tort action as the daughter’s next friend for in utero injuries to the daughter, which the mother alleged were caused almost 20 years previously in a boating accident. The defendants filed a motion for summary judgment, but they also offered to permit plaintiffs to dismiss the case with each side to bear its own costs and fees. The plaintiffs’ attorney believed that accepting this walk-away offer was in the daughter’s best interest, but the mother disagreed. Facing a conflict of interest between his two clients, the attorney moved to withdraw. The superior court permitted the attorney to withdraw and ultimately granted the unopposed motion for summary judgment and awarded costs and fees against both plaintiffs. The mother and daughter appealed. The Alaska Supreme Court held that before granting the attorney’s motion to withdraw the court should have determined the daughter’s competency, and if she was found incompetent the court should have appointed a guardian ad litem or taken further action to protect her interests pursuant to Alaska Civil Rule 17(c). Therefore, the Court reversed the trial court’s orders granting the motion to withdraw and summary judgment, vacated the award of attorney’s fees and costs, and remanded for further proceedings. View "Bravo v. Aker" on Justia Law
Griswold v. Homer City Council
Frank Griswold submitted public records requests to the City of Homer, seeking all records of communications between members of the Homer Board of Adjustment, City employees, and attorneys for the City leading up to the Board’s decision in a separate case involving Griswold. He also requested attorney invoices to the City for a six-month period. Citing various privileges, the City Manager refused to provide any records of communications surrounding the Board’s decision; the Manager provided some complete invoices but provided only redacted versions of some invoices and completely withheld some invoices. Griswold appealed the partial denial of his records request to the City Council; the Council affirmed, and Griswold appealed to the superior court. The superior court substantially affirmed. Griswold then turned to the Alaska Supreme Court. After review, the Supreme Court affirmed with respect to the communications relating to the Board’s decision, but vacated and remanded the attorney invoices issue for further analysis. View "Griswold v. Homer City Council" on Justia Law
Boiko v. Kapolchok
A self-represented couple sued their lawyer for legal malpractice. After lengthy and contentious discovery disputes, at the end of which the couple was sanctioned, the couple retained counsel to assist them in terminating the litigation. The parties agreed to dismiss the suit with prejudice, leaving open the couple’s former lawyer’s right to seek an award of attorney’s fees. At issue in this appeal was the superior court’s decisions regarding that lawyer’s motion for attorney’s fees. The superior court applied Alaska Civil Rule 82 for its award of partial reasonable attorney’s fees to the lawyer. But instead of employing Rule 82(b)(2)’s standard 20% calculation for an award without a money judgment, the court applied Rule 82(b)(3), which allowed courts to vary from the standard award. The court made findings and exercised its discretion to use 15% for calculating its fee award to the lawyer, and it left the discovery sanction against the couple in place. The Alaska Supreme Court concluded that the superior court’s findings were not clearly erroneous and that the court did not abuse its discretion or otherwise err when it applied Rule 82(b)(3); furthermore, the Court also concluded the superior court did not abuse its discretion in levying and leaving in place the discovery sanction. View "Boiko v. Kapolchok" on Justia Law
Merdes & Merdes, P.C. v. Leisnoi, Inc.
An attorney represented a Native corporation in litigation nearly three decades ago. The corporation disputed the attorney’s claim for fees, and in 1995, after the attorney’s death, the superior court entered judgment on an arbitration award of nearly $800,000 to the attorney’s law firm, then represented by the attorney’s son. The corporation paid eight installments on the judgment, but eventually stopped paying, citing financial difficulties. The law firm sought a writ of execution for the unpaid balance, and the writ was granted. The corporation appealed but under threat of the writ paid $643,760 while the appeal was pending. In a 2013 opinion the Alaska Supreme Court held the writ invalid and required the firm to repay the $643,760. The corporation was never repaid. The original law firm moved its assets to a new firm and sought a stay of execution, averring that the original firm now lacked the funds necessary for repayment. The corporation sued the original firm, the successor firm, and the son for breach of contract, fraudulent conveyance, conspiracy to fraudulently convey assets, violations of the Unfair Trade Practices Act (UTPA), unjust enrichment, and punitive damages. The firm counterclaimed, seeking recovery in quantum meruit for attorney’s fees it claimed were still owing for its original representation. The superior court granted summary judgment for the corporation on the law firm’s quantum meruit claim and, following trial, found that the son and both law firms fraudulently conveyed assets and were liable for treble damages under the UTPA. The son and the law firms appealed, arguing the trial court erred by: (1) holding that the quantum meruit claim was barred by res judicata; (2) holding the defendants liable for fraudulent conveyance; (3) awarding damages under the UTPA; and (4) making mistakes in the form of judgment and award of costs. The Alaska Supreme Court found no reversible error with one exception. The Court remanded for reconsideration of whether all three defendants are liable for prejudgment interest from the same date. View "Merdes & Merdes, P.C. v. Leisnoi, Inc." on Justia Law
In Re District Court Judge
Following a disciplinary sanction, a judge was not recommended for retention by the Alaska Judicial Council. Although the judge chose not to campaign, an independent group supported his retention and campaigned on his behalf. After the election the Alaska Commission on Judicial Conduct filed a disciplinary complaint against the judge and later imposed an informal private admonishment on the judge because he did not publicly address allegedly misleading statements made by the independent group. Because the statements clearly originated with the independent group rather than the judge, and the judge had no knowledge of one statement, the judge had no duty to publicly address any of the statements. Accordingly, we reverse the Commission’s admonishment and dismissed the Commission’s complaint against the judge. View "In Re District Court Judge" on Justia Law