Justia Legal Ethics Opinion Summaries

Early in the proceedings in New Mexico ex rel. King v. Valley Meat Co., LLC, No. D-101- 3 CV-2013-3197 (Valley Meat case), A. Blair Dunn, counsel for Valley Meat Co., e-mailed an Inspection of Public Records Act (IPRA) request to First Judicial District Court Executive Officer Stephen Pacheco for production of, among other things, communications and records relating to the Valley Meat case, including “all communications between . . . Judge Matthew Wilson and his staff . . . and Court Clerk’s staff” and “[a]ny communications received by Judge Matthew Wilson and his staff, Judge Raymond Ortiz and his staff, and any member of the Court Clerk’s staff to/from any outside person or organization.” In this superintending control proceeding, the New Mexico Supreme Court clarified the constitutional and statutory procedures for IPRA enforcement actions to compel production of court records, and held that IPRA actions directed at a district court’s records had to be filed against the lawfully designated IPRA custodian and must be filed in the judicial district that maintains the records. Furthermore, the Court held that the contents of an officeholder’s personal election campaign, social media website, and the internal decision-making communications that are at the core of the constitutional duties of the judicial branch, such as preliminary drafts of judicial decisions, are not public records that are subject to mandatory disclosure and inspection under IPRA. View "Pacheco v. Hudson" on Justia Law

Defendants sought ex parte interviews with a number of non-party medical providers in this medical malpractice action. Because of this, an issue arose regarding the scope of the physician–patient privilege in medical-malpractice actions. Section 13-90-107(1)(d), C.R.S. (2017), prohibited certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. That prohibition, however, was not unlimited. The dispute, as presented to the Colorado Supreme Court, did not implicate the physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants, meaning section 107(1)(d)(I) was inapplicable. Instead, the issue here was whether the non-party medical providers were “in consultation with” Defendants such that section 107(1)(d)(II) removed that typically privileged information from the protection of the physician–patient privilege. The Supreme Court held the non-party medical providers were not in consultation with Defendants for the purposes of section 107(1)(d)(II). However, the Court remanded this case to the trial court for consideration of whether the Baileys impliedly waived the physician–patient privilege for the non-party medical providers. On remand, if the trial court concluded that the Baileys did waive that privilege, it should reconsider whether there is any risk that: (1) ex parte interviews with the non-party medical providers would inadvertently reveal residually privileged information; or (2) Defendants would exert undue influence on the non-party medical providers in the course of any ex parte interviews. View "In re Bailey v. Hermacinski" on Justia Law

Plaintiff unsuccessfully sued Bartsch’s estate, claiming to be Bartsch’s son, unintentionally omitted from his father’s will. The court of appeal upheld a finding that Bartsch was aware of plaintiff’s existence when he executed his will, having reluctantly made court-ordered child support payments to plaintiff’s mother for many years. Plaintiff separately sued the attorney who represented the executor and the executor, alleging intentional fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment, because the defendants stated under penalty of perjury that decedent had no children when they filed the probate petition, did not serve notice of their petition on plaintiff, and “willfully failed to inform the Court [that plaintiff was Bartsch’s son], depriving plaintiff of the opportunity to assert a claim. He also alleged that the way defendants stated the petition’s allegations made him believe that decedent “was not aware that he had a son or had forgotten it,” leading him to incur significant legal fees. The court of appeal affirmed summary judgment in favor of the defendants. Plaintiff could not establish any damages because it was established that he had no interest in Bartsch’s estate. His claims are based entirely on the defendants' representations in connection with the probate proceeding and are, therefore, barred by the litigation privilege, Civil Code 47(b). View "Herterich v. Peltner" on Justia Law

Plaintiff unsuccessfully sued Bartsch’s estate, claiming to be Bartsch’s son, unintentionally omitted from his father’s will. The court of appeal upheld a finding that Bartsch was aware of plaintiff’s existence when he executed his will, having reluctantly made court-ordered child support payments to plaintiff’s mother for many years. Plaintiff separately sued the attorney who represented the executor and the executor, alleging intentional fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment, because the defendants stated under penalty of perjury that decedent had no children when they filed the probate petition, did not serve notice of their petition on plaintiff, and “willfully failed to inform the Court [that plaintiff was Bartsch’s son], depriving plaintiff of the opportunity to assert a claim. He also alleged that the way defendants stated the petition’s allegations made him believe that decedent “was not aware that he had a son or had forgotten it,” leading him to incur significant legal fees. The court of appeal affirmed summary judgment in favor of the defendants. Plaintiff could not establish any damages because it was established that he had no interest in Bartsch’s estate. His claims are based entirely on the defendants' representations in connection with the probate proceeding and are, therefore, barred by the litigation privilege, Civil Code 47(b). View "Herterich v. Peltner" on Justia Law

The Dezzanis own a condominium and are members of the Homeowners' Association (HOA). Kern, an attorney, represents the HOA and advises its governing board. In a dispute regarding an extended deck on the Dezzani unit, the board issued a notice of violation with drafting assistance from Kern. Kern notified the Dezzanis that she represented the HOA. Kern and the Dezzanis exchanged several letters. The board held a hearing and upheld the notice. Throughout this time, Kern advised the HOA regarding the Dezzanis' and other members' deck extensions. The Dezzanis filed suit against Kern under NRS 116.31183, which allows a unit owner to bring a separate action for damages, attorney fees, and costs when an “executive board, a member of an executive board, a community manager or an officer, employee or agent of an association" takes retaliatory action against a unit's owner. The Nevada Supreme Court affirmed the dismissal of their action, noting that the Dezzanis did not specify how Kern retaliated against them. An attorney is not an "agent" under NRS 116.31183 for claims of retaliatory action where the attorney is providing legal services for a common-interest community homeowners' association. In a consolidated case, the court held that attorneys litigating pro se and/or on behalf of their law firms cannot recover fees because those fees were not actually incurred by the attorney or the law firm, but they can recover taxable costs in the action. View "Dezzani v. Kern & Associates, Ltd." on Justia Law

The Dezzanis own a condominium and are members of the Homeowners' Association (HOA). Kern, an attorney, represents the HOA and advises its governing board. In a dispute regarding an extended deck on the Dezzani unit, the board issued a notice of violation with drafting assistance from Kern. Kern notified the Dezzanis that she represented the HOA. Kern and the Dezzanis exchanged several letters. The board held a hearing and upheld the notice. Throughout this time, Kern advised the HOA regarding the Dezzanis' and other members' deck extensions. The Dezzanis filed suit against Kern under NRS 116.31183, which allows a unit owner to bring a separate action for damages, attorney fees, and costs when an “executive board, a member of an executive board, a community manager or an officer, employee or agent of an association" takes retaliatory action against a unit's owner. The Nevada Supreme Court affirmed the dismissal of their action, noting that the Dezzanis did not specify how Kern retaliated against them. An attorney is not an "agent" under NRS 116.31183 for claims of retaliatory action where the attorney is providing legal services for a common-interest community homeowners' association. In a consolidated case, the court held that attorneys litigating pro se and/or on behalf of their law firms cannot recover fees because those fees were not actually incurred by the attorney or the law firm, but they can recover taxable costs in the action. View "Dezzani v. Kern & Associates, Ltd." on Justia Law

Itron alleged that misrepresentations by three of SmartSynch's corporate officers (defendants) caused it unknowingly to assume an unwanted $60 million contractual obligation to a third party, Consert. Itron eventually settled Consert's claims and then filed suit against defendants for negligent misrepresentation. The magistrate judge ordered Itron to produce, without qualification, materials that were shielded from disclosure by the attorney-client privilege. The Fifth Circuit granted Itron's petition for mandamus and vacated the magistrate judge's order, holding that the mere act of filing the lawsuit effected no waiver of any attorney-client privilege. The court remanded with instructions to reevaluate defendants' motion. View "In Re: Itron, Inc." on Justia Law

Itron alleged that misrepresentations by three of SmartSynch's corporate officers (defendants) caused it unknowingly to assume an unwanted $60 million contractual obligation to a third party, Consert. Itron eventually settled Consert's claims and then filed suit against defendants for negligent misrepresentation. The magistrate judge ordered Itron to produce, without qualification, materials that were shielded from disclosure by the attorney-client privilege. The Fifth Circuit granted Itron's petition for mandamus and vacated the magistrate judge's order, holding that the mere act of filing the lawsuit effected no waiver of any attorney-client privilege. The court remanded with instructions to reevaluate defendants' motion. View "In Re: Itron, Inc." on Justia Law

Murphy was awarded a judgment in his federal civil rights suit against two prison guards, including an award of attorney’s fees; 42 U.S.C. 1997e(d)(2) provides that in such cases “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.” The district court ordered Murphy to pay 10% of his judgment toward the fee award, leaving defendants responsible for the remainder. The Seventh Circuit reversed, holding that section 1997e(d)(2) required the district court to exhaust 25% of the prisoner’s judgment before demanding payment from the defendants. The Supreme Court affirmed. The mandatory phrase “shall be applied” suggests that the district court has some nondiscretionary duty to perform. The infinitival phrase “to satisfy the amount of attorney’s fees awarded” specifies the purpose of the preceding verb’s nondiscretionary duty and “to satisfy” an obligation, especially a financial obligation, usually means to discharge the obligation in full. The district court does not have wide discretion to pick any “portion” that does not exceed the 25% cap. This conclusion is reinforced by section 1997e(d)’s surrounding provisions, which also limit the district court’s pre-existing discretion under section 1988(b). View "Murphy v. Smith" on Justia Law

Murphy was awarded a judgment in his federal civil rights suit against two prison guards, including an award of attorney’s fees; 42 U.S.C. 1997e(d)(2) provides that in such cases “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.” The district court ordered Murphy to pay 10% of his judgment toward the fee award, leaving defendants responsible for the remainder. The Seventh Circuit reversed, holding that section 1997e(d)(2) required the district court to exhaust 25% of the prisoner’s judgment before demanding payment from the defendants. The Supreme Court affirmed. The mandatory phrase “shall be applied” suggests that the district court has some nondiscretionary duty to perform. The infinitival phrase “to satisfy the amount of attorney’s fees awarded” specifies the purpose of the preceding verb’s nondiscretionary duty and “to satisfy” an obligation, especially a financial obligation, usually means to discharge the obligation in full. The district court does not have wide discretion to pick any “portion” that does not exceed the 25% cap. This conclusion is reinforced by section 1997e(d)’s surrounding provisions, which also limit the district court’s pre-existing discretion under section 1988(b). View "Murphy v. Smith" on Justia Law