Justia Legal Ethics Opinion Summaries

Articles Posted in Constitutional Law
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South Carolina Attorney General Alan Wilson retained Respondents Willoughby & Hoefer, P.A., and Davidson, Wren & DeMasters, P.A., (collectively, the Law Firms) to represent the State in litigation against the United States Department of Energy (DOE). Wilson and the Law Firms executed a litigation retention agreement, which provided that the Law Firms were hired on a contingent fee basis. When the State settled its claims with the DOE for $600 million, Wilson transferred $75 million in attorneys' fees to the Law Firms. Appellants challenged the transfer, claiming it was unconstitutional and unreasonable. The circuit court dismissed Appellants' claims for lack of standing, and the South Carolina Supreme Court certified the case for review of the standing issue. The Supreme Court reversed the circuit court's finding that Appellants lacked public importance standing and remanded the case for the circuit court to consider the merits of Appellants' claims. View "South Carolina Public Interest Foundation, et al. v. Wilson" on Justia Law

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The issue this case presented for the Delaware Supreme Court's review centered on whether the First Amendment barred claims for defamation and tortious interference with contract against a defendant who, in an email to a law firm, described as “shockingly racist” a lawsuit filed by one of the firm’s partners in his personal capacity. The suit aimed to preserve a nearby high school’s “Indian” mascot. The partner, who claimed to have lost his position with the law firm because of the email, sued his detractor, contending that the characterization of his lawsuit was demonstrably false and pled four causes of action, including defamation and tortious interference with contract. The partner’s detractor, in response, contended her statements about the partner were opinions protected by the First Amendment’s Free Speech Clause. The Superior Court agreed with the detractor and dismissed the partner’s tort action. The Supreme Court agreed with the trial court: the statements at issue did not on their face contain demonstrably false statements of fact, nor did they imply defamatory and provably false facts. "As statements concerning an issue of public concern, moreover, they are entitled to heightened First Amendment protection and cannot form the predicate of the plaintiff’s tort claims." View "Cousins v. Goodier" on Justia Law

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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

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Robert Bolinske appealed the dismissal of his claims against former Supreme Court Justice Dale Sandstrom and former District Court Judge Gail Hagerty (“State Defendants”) and awarding them attorney’s fees. In October 2016, Bolinske alleged in a press release that the State Defendants conspired to misfile or hide a petition for supervisory writ that he submitted in a prior case and thus tampered with public records. A few days after this press release, Rob Port published an article on his “Say Anything” blog regarding Bolinske’s press release. The article stated Port contacted Sandstrom and quoted Sandstrom as having said Bolinske’s press release was “bizarre and rather sad” and that “[a]lthough I’ve been aware of his mental health problems for years, I don’t recall ever having seen anything in his email before.” Three days after the article was published, Hagerty filed a grievance complaint against Bolinske, alleging he violated the North Dakota Rules of Professional Conduct. Based on the complaint, a disciplinary action was brought against Bolinske. The Inquiry Committee found Bolinske violated the Rules of Professional Conduct and issued him an admonition. The Disciplinary Board of the Supreme Court affirmed, and the North Dakota Supreme Court affirmed, concluding his procedural due process rights were not violated. The Supreme Court affirmed dismissal of Bolinske’s complaint in part, concluding the district court properly dismissed Bolinske’s claims of procedural and substantive due process, civil conspiracy, malicious prosecution, abuse of process, intentional and negligent infliction of emotional distress, governmental bad faith, and tortious outrage. The Supreme Court reversed in part, concluding the district court erred by dismissing the defamation claim under the statute of limitations. The award of attorney’s fees was vacated and the matter remanded for further proceedings. View "Bolinske v. Sandstrom, et al." on Justia Law

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An assistant district attorney (the “DA”) in Fulton County, Georgia obtained a material witness warrant requiring Plaintiff to appear as a witness at trial. Plaintiff voluntarily appeared at trial, making execution of the warrant unnecessary. After the trial ended, the DA failed to inform the trial judge that the warrant needed to be recalled. A few months later, a police officer arrested Plaintiff and placed him in jail because of the outstanding warrant. A judge eventually ordered Plaintiff’s release.   Plaintiff brought a 42 U.S.C. Section 1983 action alleging, among other things, that the DA’s failure to initiate the warrant’s cancelation violated his Fourth and Fourteenth Amendment rights. The DA moved to dismiss the suit arguing that as a prosecutor she was entitled to absolute prosecutorial immunity. The district court agreed and dismissed Plaintiff’s claims against her.   The Eleventh Circuit reversed and held that absolute prosecutorial immunity does not extend to DA’s failure to take action to cancel the warrant. The district court thus erred in dismissing Plaintiff’s complaint.   The court wrote that determining whether prosecutorial immunity applies requires the court to take a fact-specific functional approach. Here, the court found that applying Third Circuit precedent from Odd v. Malone, 538 F.3d 202 (3d Cir. 2008), results in the conclusion that the DA is not entitled to absolute prosecutorial immunity. Thus the DA has failed to show that absolute immunity protects her post-trial conduct here. View "Kidanemariam Kassa v. Antionette Stephenson" on Justia Law

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Defendant Lamar Stanton was charged with three counts of first-degree sexual abuse and two counts of first-degree sodomy. Because defendant was indigent, the trial court appointed counsel to represent him. Over the course of the trial court proceedings, defendant was represented by several different court-appointed lawyers. Defendant expressed frustration with his last-appointed counsel, Lee-Mandlin, and asked her to move to withdraw. Lee-Mandlin filed two motions to withdraw but told the trial court that she was prepared to represent defendant. The court denied the motions, and, after defendant was evaluated at the state hospital and the trial court determined that he was able to aid and assist in his defense, and the case proceeded to a bench trial. The trial court entered a judgment of conviction and sentence, and defendant appealed, arguing that the trial court had erred by proceeding as if defendant had waived his right to court-appointed counsel. The Court of Appeals affirmed without opinion. The Oregon Supreme Court found three motions had been presented with respect to defendant’s representation, and that the trial court should have addressed the three motions separately because they presented different legal questions. Because the trial court did not expressly address these questions, the Supreme Court surmised the trial court could not have concluded defendant expressly waived his right to court-appointed counsel. Consequently, in the context of the multiple pending motions, the trial court’s question to defendant about whether he wanted Lee-Mandlin to withdraw was too ambiguous for defendant’s answer to constitute an intentional relinquishment of his right to court-appointed counsel. Judgment was reversed and the matter remanded for further proceedings. View "Oregon v. Stanton" on Justia Law

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Under rules adopted and enforced by the Wisconsin Supreme Court, Wisconsin lawyers must join and pay dues to the State Bar of Wisconsin. Active membership in the association is “a condition precedent to the right to practice law” in the state. This regulatory regime, often called an “integrated, mandatory[,] or unified bar,” authorizes the State Bar to use membership dues to aid the courts in the administration of justice, conduct a program of continuing legal education, and maintain “high ideals of integrity, learning, competence… public service[,] and high standards of conduct” in the bar of the state.Attorney File contends that requiring him to join and subsidize the State Bar violates his First Amendment free speech and associational rights. Recognizing that Supreme Court precedent forecloses this claim (Keller v. State Bar of Cal. (1990)), File argued that the Court’s more recent cases—particularly “Janus” (2018)--implicitly overruled Keller. The district court rejected this argument. The Seventh Circuit affirmed. Keller “may be difficult to square with the Supreme Court’s more recent First Amendment caselaw, but on multiple occasions and in no uncertain terms, the Court has instructed lower courts to resist invitations to find its decisions overruled by implication.” View "File v. Kastner" on Justia Law

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Defendant Mark Bartlett requested the City of Portland to release three city attorney opinions and one legal memorandum. The parties agreed that the documents were public records, were within the scope of the attorney-client privilege, and were more than 25 years old. The city declined to release the documents, arguing that they were exempt from the public records law because of the attorney-client privilege. The specific question presented for the Oregon Supreme Court’s consideration in this case was whether the four documents that were prepared more than 25 years ago by the Portland City Attorney for the mayor and two city commissioners and that were subject to the attorney-client privilege had to be disclosed under ORS 192.390. The Court concluded those documents had to be disclosed. View "City of Portland v. Bartlett" on Justia Law

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At issue in this post-conviction case was petitioner Steve Franke’s attempt to prove that his criminal trial counsel provided constitutionally inadequate and ineffective assistance by failing to object that an expert diagnosis of child sexual abuse was inadmissible in the absence of corroborating physical evidence. Although the objection would have been contrary to controlling Court of Appeals precedent at the time of petitioner’s 2001 criminal trial, the Oregon Supreme Court later held that the rules of evidence required exclusion of a diagnosis of sexual abuse if it was not based on physical evidence, effectively overruling the Court of Appeals precedent. To survive summary judgment, petitioner offered evidence that some criminal defense attorneys in 2001 viewed the Court of Appeals precedent as vulnerable, were raising the kind of challenge to sexual abuse diagnoses that ultimately succeeded, and were recommending that practice to other criminal defense attorneys. Petitioner contended the evidence would have allowed him to establish that the exercise of reasonable skill and judgment obligated his attorney to raise a similar objection, or at least that his attorney’s failure to raise the argument was the product of a failure to adequately prepare and familiarize himself with the state of the law. Both the post-conviction court and the Court of Appeals held that petitioner’s claim failed as a matter of law. The Supreme Court agreed with the Court of Appeals that the argument that ultimately succeeded in Southard was not so obviously correct in 2001 that the exercise of reasonable skill obligated attorneys to raise the argument, and petitioner’s evidence did not permit a different conclusion. But the Supreme Court disagreed that petitioner’s claim could be resolved on summary judgment; the evidence created genuine issues of material fact that, if resolved in petitioner’s favor, could establish the failure by petitioner’s attorney to raise a Southard-type challenge to the sexual abuse diagnosis was the product of an unreasonable failure to investigate and familiarize himself with the state of the law to the extent appropriate to the nature and complexity of the case. Accordingly, the Supreme Court reversed the lower courts' judgments and remanded for further proceedings. View "Jackson v. Franke" on Justia Law

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Jared Cortes-Gonzalez entered into a global disposition that required him to plead guilty in four felony cases, including two in which he faced complaints to revoke his probation. The plea agreement indicated that, while the sentences would be within the court’s discretion, the cumulative prison term would not exceed twenty years. Two weeks later, Cortes-Gonzalez filed a “Motion to Consider 35-C,” alleging that his attorney (the “public defender”) had provided ineffective assistance by failing to accurately advise him of the plea agreement’s potential punishment. In April 2021, alternate defense counsel submitted a supplemental Crim. P. 35(c) motion. The prosecution asked the district court to issue an order finding a “waiver of all confidential attorney-client privileges or relationships affected by the pursuit” of the Crim. P. 35(c) ineffective assistance claim. The court granted the motion, and the prosecution served an subpoena duces tecum (“SDT”) on the public defender to compel the production records in her possession related to Cortes-Gonzalez’s four cases. The public defender objected to the SDT. The issue presented to the Colorado Supreme Court in this case related to the attorney-client privilege in the context of ineffective assistance of counsel. The Supreme Court held: (1) whenever a defendant alleges ineffective assistance of counsel, the defendant automatically waives the attorney-client privilege, as well as any other confidentiality, between counsel and the defendant, but only with respect to the information that is related to the ineffective assistance claim; (2) the procedures set forth in Crim. P. 35(c)(3)(V) in no way modify section 18-1-417, C.R.S. (2021); (3) it is improper for prosecutors to request an order or use a Crim. P. 17 subpoena duces tecum (“SDT”) to attempt to access the confidential information covered by section 18-1-417(1); and (4) the prosecution doesn’t have an inherent right to an in camera review of the allegedly ineffective counsel’s case file - even if the purpose of the review is to ensure that all the information subject to the waiver will be produced. After any in camera review, the court must disclose to the prosecution claim-related information not previously produced. View "In re Colorado v. Cortes- Gonzalez" on Justia Law