Justia Legal Ethics Opinion Summaries

At issue in this appeal was a district court’s order compelling production of a recording of petitioner Kayla Fox’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments Fox raised in a motion for reconsideration. The Colorado Supreme Court concluded the presence of a third party during an attorney-client communication ordinarily destroys the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation, unless another exception applies. On the facts of this case, the district court did not err when it found that Fox had not shown the requisite necessity to preserve her claim of privilege. Nor did the district court abuse its discretion in declining to consider Fox’s new arguments raised for the first time in her motion for reconsideration. View "In re Fox v. Alfini" on Justia Law

Shaf, a New Jersey company, sells apparel. Seventh Avenue, a Wisconsin-based catalog merchandiser, sells clothing protected by a trademark. After a dispute over Shaf’s alleged infringement of Seventh Avenue’s trademark, the parties entered into a consent agreement. Months later, Seventh Avenue discovered what it saw as continuing infringement by Shaf and moved to hold Shaf in contempt. Shaf was represented in the district court by Milwaukee counsel. The attorney received an email notification (from the court’s electronic docketing system) of the motion upon its January 17 filing, indicating that response was due January 24. Shaf failed to respond. The court scheduled a hearing for February 14. Nobody for Shaf appeared. The court held Shaf in contempt and required that it pay Seventh Avenue’s fees and costs. The contempt order prompted Shaf's local counsel to move for reconsideration, explaining that counsel was traveling internationally when the motion was filed. Counsel returned to work five days before Shaf’s written response was due and 26 days before the hearing, but took several weeks to catch up on his email. Shaf’s request also explained that local counsel believed national counsel would attend to any ongoing needs in the case. The court denied the motion to reconsider. Seventh Avenue supplemented its fee petition to reflect additional expenses. The Seventh Circuit affirmed an award of $34,905 in fees and costs. While the delayed response was better than no response, the court acted within its discretion to find that Shaf’s initial unresponsiveness warranted a sanction. View "Seventh Avenue, Inc. v. Shaf International, Inc." on Justia Law

In 2014, the court of appeal decided a case that involved the legitimacy of certain retirement benefits regularly paid by the Oakland Police and Fire Retirement Board to members and beneficiaries of the Oakland Police and Fire Retirement System (PFRS). The Retired Oakland Police Officers Association and individual PFRS pensioners then sought attorney fees under California’s private attorney general statute, Code of Civil Procedure section 1021.5 and the federal Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. 1988. The trial court determined that fees were not warranted under either statute. The court of appeal found an award of attorney fees under section 1021.5 to be proper. The Association was a prevailing party and several facts, including the relative poverty of the Association and its members, are all valid considerations in a section 1021.5 fee analysis and tip the scales decisively in favor of a fee award, especially when considered alongside the more modest estimated monetary value of the case discussed above. in successfully litigating to protect both procedural and substantive public pension rights on these facts, the Association was vindicating important rights affecting the public interest. The Association’s actions protected the pensions of the 590 living pensioners and their families, a clear economic benefit. View "City of Oakland v. Oakland Police and Fire Retirement System" on Justia Law

Halbig, a “school safety and security expert and consultant” living in Florida, began an independent investigation of the 2012 shooting at Sandy Hook Elementary School and established an organization, “Sandy Hook Justice.” Halbig believed that GoFundMe canceled his Sandy Hook Justice campaign because of a letter from the “Sandy Hook Defense Group” and discovered “defamatory posts” about himself on several websites and social media sites. Halbig sued five “John Doe” defendants in Florida for defamation for those postings. To determine the identities of the posters, Halbig served a subpoena on Google requiring the production of documents and information revealing the identity of the person maintaining http://sandyhookanalysis.blogspot.com. Google notified the account holder of the subpoena. That person, “Roe,” sought to quash the subpoena under Code of Civil Procedure section 1987.11 and requested fees and costs under section 1987.2(c). Before the hearing, Halbig withdrew the subpoena. At the subsequent hearing, the trial court found that Roe was the “prevailing party” under section 1987.2(c) and awarded attorney’s fees and costs to Roe. The court of appeal agreed that Roe was the prevailing party under section 1987.2(c), but concluded that the trial court erred in setting the amount of attorney’s fees. View "Roe v. Halbig" on Justia Law

The Johnston Law Office appeals from a judgment dismissing its claims against Jon Brakke and Vogel Law Firm (collectively "Vogel"). Johnston argued the district court erred in granting summary judgment and dismissing its claims. Vogel represented PHI Financial Services, Inc. in an action against Johnston to recover damages for a fraudulent transfer. The district court entered judgment against Johnston in that action. In April 2016 Johnston sued Vogel for tortious interference with a business relationship, tortious interference with attorney-client business relationships, and abuse of process. Johnston alleged Vogel violated state law while attempting to execute on the judgment entered against Johnston. Johnston claimed Vogel improperly attempted to garnish funds from Johnston's lawyer trust account, operating account and fees owed by Johnston's clients, and Vogel's unlawful actions interfered with Johnston's business relationships with its lending bank and clients. In July 2017 Vogel moved for summary judgment, arguing Johnston was unable to prove the required elements of its claims and Vogel was entitled to dismissal of the claims. Vogel also moved to quash a subpoena duces tecum Johnston served on PHI Financial seeking billing information between Vogel and PHI Financial. The district court granted Vogel's motion as to all claims. Finding no reversible error, the North Dakota Supreme Court affirmed dismissal. View "Johnston Law Office, P.C. v. Brakke" on Justia Law

John Terry sued his former court-appointed attorney Oby Rogers claiming fraud, legal malpractice, and violation of his civil rights under 42 U.S.C. 1983. The trial court granted Rogers’s motion for summary judgment on all claims and held that the Mississippi Tort Claims Act (MTCA) was applicable because Rogers’s was an “employee” for the purposes of the MTCA. Finding no reversible error in the trial court’s judgment, the Mississippi Supreme Court affirmed the grant of summary judgment. View "Terry v. Oby T. Rogers, PLLC" on Justia Law

Waushara County wanted to improve a rural highway. A dispute erupted about who owned land on which DeCoster had erected a fence. State court litigation settled for a $7,900 payment to DeCoster, who then sought more than $110,000 in attorneys’ fees and other expenses. The court of appeals affirmed an award of about $31,000, ruling that any outlay after the $7,900 offer was unreasonable. DeCoster then sued in federal court, seeking an award under 42 U.S.C. 4651–55, the Uniform Relocation Assistance and Real Property Acquisition Act, which conditions federal grants for highway projects on states’ providing assurance that they will compensate affected landowners for reasonable attorney, appraisal, and engineering fees. The district court ruled that the Act does not provide a private right of action. The Seventh Circuit affirmed, without deciding the merits. DeCoster had to present his claim in the state suit. Wisconsin employs the doctrine of claim preclusion under which all legal theories, pertaining to a single transaction, that could have been presented in the initial suit, are barred if not so presented. It does not matter whether the “transaction” is identified as the (arguable) taking of DeCoster’s land or his litigation expenses; the federal suit rests on a transaction that was before the state court. In addition, both Wis. Stat. 32.28 and the Act call for reimbursement of “reasonable” litigation expenses. Wisconsin’s judiciary determined that an award exceeding $31,561 would be unreasonable. View "DeCoster v. Waushara County Highway Department" on Justia Law

The Supreme Court approved the decision of the Third District Court of Appeal ruling that the existence of a Facebook “friendship” was not a sufficient basis to disqualify a trial court judge, holding that the existence of a Facebook “friendship” was not a sufficient basis for disqualification.A law office and attorney petitioned the Third District for a writ of prohibition to disqualify the trial court judge in the underlying case based on the fact that an attorney appearing before the trial judge was listed as a “friend” on the trial judge’s personal Facebook page. The Third District denied the petition for writ of prohibition, ruling that an allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. The Supreme Court affirmed, holding that where Facebook “friendships” regularly involve strangers, there was no reason that this particular relationship should be singled out and subjected to a per se rule of disqualification. View "Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Ass’n" on Justia Law

Genisman and Cline co-owned ECI and Coast. Genisman wanted Cline to buy out his interests and sought to be released from personal guarantees to lenders, including Blumenfeld. Genisman retained the Hopkins law firm. Initial drafts of the transaction documents structured it as a buyout. At some point, Hopkins revised the documents to implement a redemption of Genisman’s interest by the companies. Genisman, signed the documents unaware of the change. In July 2012, Blumenfeld sued Genisman for intentional misrepresentation, negligent misrepresentation, and constructive fraud, alleging that Blumenfeld had loaned $3.5 million to Coast, secured by its assets and the personal guarantees; that he released Genisman from his personal guarantees; that $750,000 remained unpaid when, in 2009, Coast became insolvent; that, in 2012, Blumenfeld learned that the documents called for Coast to pay Genisman $1,115,000; and that he would not have agreed to release Genisman from his personal guarantees had Genisman properly advised him of the terms. Genisman’s new law firm billed Genisman $2,475.40 to defend. Genisman sued Hopkins in December 2013. The court affirmed rejection of the suit as untimely under Code of Civil Procedure 340.6(a), which requires legal malpractice claims be brought one year after actual or constructive discovery. View "Genisman v. Hopkins Carley" on Justia Law

Olagues is a self-proclaimed stock options expert, traveling the country to file pro se claims under section 16(b) of the Securities and Exchange Act of 1934, which permits a shareholder to bring an insider trading action to disgorge “short-swing” profits that an insider obtained improperly. Any recovery goes only to the company. In one such suit, the district court granted a motion to strike Olagues’ complaint and dismiss the action, stating Olagues, as a pro se litigant, could not pursue a section 16(b) claim on behalf of TimkenSteel because he would be representing the interests of the company. The Sixth Circuit affirmed that Olagues cannot proceed pro se but remanded to give Olagues the opportunity to retain counsel and file an amended complaint with counsel. View "Olagues v. Timken" on Justia Law