Justia Legal Ethics Opinion Summaries

Florida voters elect judges. The Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, stating that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns. Yulee mailed and posted online a letter soliciting financial contributions to her campaign for judicial office. The Florida Bar disciplined her for violating a Bar Rule requiring candidates to comply with Canon 7C(1). The Florida Supreme Court upheld the sanction against a First Amendment challenge. The U.S. Supreme Court affirmed. Florida’s interest in preserving public confidence in the integrity of its judiciary is compelling.. Unlike the legislature or the executive, the judiciary “has no influence over either the sword or the purse,” so its authority largely depends on the public’s willingness to respect its decisions. Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: it is not riddled with exceptions. Allowing a candidate to use a committee and to write thank you notes reflect Florida’s effort to respect the First Amendment interests of candidates and contributors. Canon 7C(1) is not overinclusive It allows judicial candidates to discuss any issue with any person at any time; to write letters, give speeches, and put up billboards; to contact potential supporters in person, on the phone, or online; and to promote their campaigns through the media. Though they cannot ask for money, they can direct their campaign committees to do so. Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety. Canon 7C(1) must be narrowly tailored, not “perfectly tailored” to address that concern. View "Williams-Yulee v. Florida Bar" on Justia Law

Pending before the Fifth Circuit Court of Appeals was a motion by petitioner's federal habeas counsel to withdraw as counsel. Counsel argued that because he also represented petitioner during state habeas proceedings, it would be a conflict of interest for him to now determine whether his conduct was ineffective. Petitioner also requested the appointment of new counsel to investigate whether he has any viable claim under the rule established in the Supreme Court's decisions in "Martinez v. Ryan" and "Trevino v. Thaler." The Fifth Circuit did not read the Supreme Court's narrowly crafted decisions in Martinez or Trevino to require in this case the appointment of additional federal habeas counsel. "[P]etitioner's present lawyer is conflicted only in the sense that every lawyer charged to examine the performance of counsel is conflicted in that task when the performance is his own. That has no bearing on counsel's charge to argue the substantive claim of ineffective assistance of trial counsel. We do not read the Supreme Court as requiring a second federally appointed lawyer to plow the same ground ably plowed by the first federally appointed lawyer with no suggestion or hint of any shortcoming on his part. By this manner of reason there is no end to the succession of potential appointments, for each previous lawyer might have been ineffective." Construing present counsel's motion to withdraw as a motion for the appointment of supplemental counsel, the Fifth Circuit granted that motion. Because the claims he brought were yet unresolved, the Court denied the motion of present counsel to withdraw. The case was remanded in part back to the district court solely to appoint supplemental counsel, and to consider in the first instance whether petitioner court establish cause for the procedural default of any ineffective-assistance-of-trial-counsel claims pursuant to Martinez and Trevino that he might raise, and if so, whether those claims merited relief. View "Speer v. Stephens" on Justia Law

Petitioners sought the disqualification of the law firm of AlvaradoSmith, which: (1) previously represented another law firm in an attorney fee dispute; and (2) in this case, represented an expert seeking consulting fees arising out of the same underlying litigation as the attorney fee dispute. The Court of Appeal issued a stay order and order to show cause, and later concluded that due to AlvaradoSmith's wide-ranging access to privileged information in the first representation and the substantial relationship between the two matters required the firm to be disqualified. View "Acacia Patent Acquisition v. Super. Ct." on Justia Law

Defendant and others were charged with conspiring to distribute and conspiring to possess with intent to distribute cocaine, 21 U.S.C. 846, 841(a). He originally was appointed counsel, but later retained new counsel. Unsatisfied, defendant retained a third attorney, Rozan. Represented by Rozan, defendant pleaded guilty. He was sentenced to 151 months’ imprisonment. The Eighth Circuit upheld the conviction and sentence. The Supreme Court denied certiorari. Defendant then filed a pro se motion to vacate his conviction under 28 U.S.C. 2255, claiming ineffective assistance of counsel at the trial and appellate levels. Defendant argued that Rozan did not disclose that in 2004 and 2005, Rozan was privately reprimanded by the State Bar of Texas; in 2007, he was publicly reprimanded; and in 2009, while representing defendant on appeal, he was suspended from practice in Texas for five years, effective January 1, 2010. The Texas Supreme Court ordered Rozan to provide written notice of his suspension to every client and to every court officer in every court in which Rozan practiced. The Eighth Circuit affirmed denial of relief. It was defendant’s responsibility to investigate the disciplinary past of his attorney; the required notification occurred after defendant’s sentencing, and defendant did not show how he was prejudiced by Rozan’s silence. View "Ghost Bear v. United States" on Justia Law

Flora worked as Luzerne County Public Defender from 1980- 2013. He became Chief Public Defender in 2010, maintaining a private practice. His predecessor had tried to secure additional funding by submitting weekly reports concerning excessive caseloads and staffing deficiencies. Flora obtained grant funding for representing juveniles, but was not able to obtain additional money for adult offenders. Flora reported that the existing level of resources did not allow the Office to provide constitutionally adequate representation. The County was unresponsive, so Flora refused representation to those not faced with incarceration. In 2012 Flora initiated a class action lawsuit on behalf of indigent defendants and sought an injunction to prevent his firing. The state court ordered the County to provide adequate funding and prohibited refusing representation to indigent defendants. While the parties were in mediation, the County approved new positions. The funding litigation followed the “Kids for Cash” scandal. From 2003-2008, about 50% of Luzerne County juvenile offenders appeared in court without counsel. Virtually all were adjudicated delinquent. Federal investigators uncovered that judges had accepted kickbacks from for-profit juvenile detention facilities to send unrepresented juveniles to those facilities. The Pennsylvania Supreme Court ordered vacatur and expungement of thousands of delinquency adjudications. Flora alleges that, in 2013, he learned that 3,000 adjudications had not been expunged and reported the matter. Flora was relieved of his duties. Flora sued, alleging retaliation for his funding lawsuit and for reporting noncompliance with the expungement order. The district court dismissed. The Third Circuit vacated, finding that, under the Supreme Court’s 2014 decision, Lane v. Franks, Flora pled facts sufficient to allege that he spoke as a citizen. View "Flora v. County of Luzerne" on Justia Law

Plaintiffs participated in the Occupy Wall Street protests in front of Austin City Hall. The City then started a policy under which it issued criminal-trespass notices to plaintiffs and other protestors. Plaintiffs filed suit against the City, alleging facial and as-appliec challenges to the policy under the First and Fourteenth Amendments, seeking declaratory and injunctive relief and damages. After bench trial, the district court entered an order declaring the policy unconstitutional on its face and enjoined the City from issuing the notices. The district court denied plaintiffs' motion for attorneys fees and expenses under 42 U.S.C. 1988 and plaintiffs appealed. The court reversed the denial of fees because plaintiffs were the prevailing party on their constitutional challenge. The district court abused its discretion when it relied on limited injury and limited success as special circumstances justifying a wholesale denial of fees. Even accepting the district court's consideration of the limited injury and limited scope of the injunction as special circumstances, the district court's factual support for those points is unsupported by record evidence. The court remanded for the district court to determine the amount of the award. View "Sanchez v. City of Austin" on Justia Law

After prevailing in a condemnation action, petitioners-landowners moved for an award of attorneys' fees pursuant to section 28-2-510(B)(1) of the Eminent Domain Procedure Act. Contrary to petitioners' view, the circuit court determined attorneys' fees should be awarded based on an hourly rate via a lodestar calculation rather than the contingency fee agreement between Petitioners and their attorney. The Court of Appeals affirmed. The Supreme Court interpreted section 28-2-510 and concluded the General Assembly intended for attorneys' fees to be awarded based on a constellation of factors. Specifically, section 28-2-510(B)(1) mandated that in order for a prevailing landowner to recover reasonable attorneys' fees he or she must submit an application for fees "necessarily incurred." Therefore, by implication, the General Assembly precluded a landowner from recovering attorneys' fees based solely on a contingency fee agreement without regards for section 28-2-510. The Court explained that even though the contingency fee agreement is not the sole element in the calculation, it is still a significant component as it may be used to explain the basis for the fee charged by the landowner's counsel. "Our decision should not be construed as somehow condemning or eliminating an attorney's use of a contingency fee agreement. To the contrary, we recognize that the use of these agreements is a legitimate and well-established practice for attorneys throughout our state. This practice may still be pursued. Yet, it is with the caveat that the terms of the agreement are not controlling. Rather, they constitute one factor in a constellation of factors for the court's consideration in determining an award of reasonable litigation expenses to a prevailing landowner under section 28-2-510(B)(1). The court may, in fact, conclude that the contingency fee agreement yields a reasonable fee. However, the court is not bound by the terms of the agreement. " For this case, the Supreme Court held that the Court of Appeals misapplied case law precedent. Furthermore, the Court concluded the circuit court failed to conduct the correct statutory analysis, and remanded this matter to the circuit court. Petitioners' counsel was instructed to submit an itemized statement in compliance with section 28-2-510(B)(1) as counsel's original affidavit failed to identify the "fee charged" and the actual number of hours expended. View "South Carolina Dept. of Trans. v. Revels" on Justia Law

Plaintiffs filed suit against justices of the Arizona Supreme Court challenging the Arizona Supreme Court Rule 34(f) (the AOM Rule). The AOM Rule permits admission on motion to the Arizona Bar for attorneys who are admitted to practice law in states that permit Arizona attorneys to be admitted to the bars of those states on a basis equivalent to Arizona’s AOM Rule, but requires attorneys admitted to practice law in states that do not have such reciprocal admission rules to take the uniform bar exam (UBE) in order to gain admission to the Arizona Bar. The court concluded that although plaintiffs can establish Article III standing based on injuries suffered by Plaintiff Girvin, plaintiffs failed to establish that the AOM Rule is unconstitutional on First Amendment, Fourteenth Amendment, or Privileges and Immunities Clause grounds. Accordingly, the court affirmed the district court's grant of summary judgment to the justices. View "NAAMJP V. Berch" on Justia Law

Holt threw eggs on the Katheiser driveway to frighten Kartheiser and his 6 year old daughter. Represented by counsel, she entered a negotiated guilty plea to resisting a peace officer. The other charge was nol-prossed. She was sentenced to 12 months of probation and was ordered to provide documentation of treatment. The court admonished Holt that the agreement involved a “conviction.” Days later, she filed a pro se motion to vacate, stating that she “was told there would be no conviction” and “never had the chance to testify.” Her counsel was allowed to withdraw. The circuit court granted the motion to withdraw the plea and appointed the public defender. The next day, Holt filed a pro se “Petition to Quash … the police report,” claiming tampering with the record, police brutality, and that her children were missing. After several more incidents, Holt was placed in a mental health center. She filed notice of appeal and a “Demand Letter for Formal Correction,” seeking to “hold Tim Brown accountable for ‘Bearing FALSE Witness’ the 8th Great Commandment and for Defamation.” The appellate court affirmed, reasoning that Holt had been found fit to stand trial during the pendency of the appeal so that whether she received effective assistance of counsel during proceedings below was moot. The Illinois Supreme Court affirmed, stating that public interest exception applies to warrant review. Where the evidence clearly indicates that defendant is unfit to stand trial, but a defendant contends that he is fit, counsel is not obligated to argue for a finding of fitness. In doing so, counsel would be violating his duty to the client and suborning a violation of due process. View "People v. Holt" on Justia Law

The Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board (collectively, the ODC) issued an informal advisory opinion that determined (1) the Attorney General did not have authority to prosecute criminal cases outside of the limited prosecutorial authority granted by W. Va. Code 5-3-2, and (2) the Rules of Professional Conduct would be violated if the Attorney General prosecuted assisted county prosecutors in certain criminal prosecutions. The Attorney General subsequently filed the instant petition for a writ of prohibition to prevent ODC from enforcing the informal advisory opinion, contending that county prosecutors have authority to request the Attorney General to assist with criminal prosecutions and that the office of the Attorney General has independent common law authority to prosecute criminal cases. The Supreme Court denied the writ, holding (1) county prosecutors do not have statutory authority to appoint the Attorney General as a special prosecutor; and (2) under the state Constitution and statutory law, the common law criminal prosecutorial authority of the Attorney General was abolished. View "State ex rel. Morrisey v. W. Va. Office of Disciplinary Counsel" on Justia Law