Justia Legal Ethics Opinion Summaries

Warden Gregory McLaughlin appealed the grant of a writ of habeas corpus to William Payne. In 2006, Payne was convicted on two counts of aggravated child molestation, three counts of child molestation, and one count of cruelty to children. At trial, then District Attorney for Douglas County, David McDade, appeared as a witness for the State. He identified himself to the jury as the district attorney, identified the examining prosecuting attorney as his assistant, and outlined his duties as district attorney. He also testified that his daughter was a classmate of the victim named in the indictment; his daughter told him what she had heard of the crimes; he participated in an interview of Payne early in the investigation; during the first few days of the investigation, law enforcement efforts were focused on finding Payne; and, that after his interview, he realized he would likely be a witness at trial, and removed himself from Payne's prosecution. Payne appealed, but his convictions were affirmed. In 2009, Payne filed a petition for a writ of habeas corpus, raising, inter alia, a claim of ineffective assistance of appellate counsel. The habeas court found that McDade had a conflict of interest, had testified falsely at trial, and that appellate counsel should have pursued these two issues on appeal. The habeas court also found that had the issues been raised on appeal, the result of Payne's direct appeal would have been different. The court granted the writ of habeas corpus. The warden argued that the habeas court erred in finding that the representation by Payne's appellate counsel was ineffective. The Supreme Court affirmed, finding that the assistant district attorney who acted at trial did so under the authority vested in McDade as the elected district attorney. McDade's disqualifying personal conflict of interest removed that authority, and he was not replaced as provided for by statute. View "McLaughlin v. Payne" on Justia Law

On February 14, 2013, the Attorney General received an ethics complaint, alleging possible violations of the Ethics Act by the Speaker of the House of Representatives, Robert W. Harrell, Jr. The complaint was originally submitted by a private citizen to the House Legislative Ethics Committee. That same day, the Attorney General forwarded the complaint to South Carolina Law Enforcement Division (SLED), and SLED carried out a 10-month criminal investigation into the matter. At the conclusion of the investigation, the Chief of SLED and the Attorney General petitioned the presiding judge of the state grand jury to impanel the state grand jury on January 13, 2014. Acting presiding judge of the state grand jury, the Honorable L. Casey Manning, subsequently impaneled the state grand jury. On February 24, 2014, the Speaker filed a motion to disqualify the Attorney General from participating in the grand jury investigation. On March 21, 2014, a hearing was held on the motion after which the court sua sponte raised the issue of subject matter jurisdiction. Another hearing was held, and the court found, as presiding judge of the state grand jury, it lacked subject matter jurisdiction to hear any matter arising from the Ethics Act, and refused to reach the issue of disqualification. The court discharged the grand jury and ordered the Attorney General to cease his criminal investigation. The Attorney General appealed that order to the Supreme Court. After its review, the Supreme Court concluded the circuit court erred in concluding that the House Ethics Committee had exclusive jurisdiction over the original complaint. While the crime of public corruption could include violations of the Ethics Act, the state grand jury's jurisdiction is confined to the purposes set forth in the constitution and the state grand jury statute, as circumscribed by the impaneling order. While the Court reversed the circuit court's order, it "in no way suggest[ed] that it was error for the presiding judge to inquire whether the state grand jury was 'conducting investigative activity within its jurisdiction or proper investigative activity.'" The case was remanded for a decision on whether the Attorney General should have been disqualified from participating in the state grand jury proceedings. View "Harrell v. Attorney General of South Carolina" on Justia Law

The Gallia County (Ohio) Public Defender Commission contracted with the non-profit Corporation for defense attorneys to represent indigent criminal defendants. The Corporation hired Bright, who represented R.G. before Evans, the county’s only trial judge. Bright negotiated a plea agreement, but R.G. hesitated during the plea colloquy. “Mere seconds” later, R.G. informed Bright and Evans that he would take the deal after all. Evans refused. Bright and the prosecutor met with Evans to convince the judge to accept R.G.’s plea. He refused. In pleadings, Bright criticized Evans’s policies as “an abuse of discretion,” “unreasonable,” “arbitrary … unconscionable.” Bright’s language did not include profanity and did not claim ethical impropriety. Evans subsequently contacted the Office of Disciplinary Counsel and filed a grievance against Bright and filed a public journal entry stating that Bright’s motion, although not amounting to misconduct or contempt, had created a conflict. He ordered that Bright be removed from the R.G. case. He then filed entries removing Bright from 70 other felony cases. The Corporation terminated Bright’s employment, allegedly without a hearing or other due process. Bright sued Evans, the Board, the Corporation, and the Commission. The district court concluded that Evans was “not entitled to absolute judicial immunity because his actions were completely outside of his jurisdiction.” The court held that Bright failed to sufficiently plead that the Board or the Commission retaliated against him for exercising his constitutional rights or that liability attached under the Monell doctrine, then dismissed claims against the Corporation. The Sixth Circuit reversed with respect to Evans. While Evans’s conduct was worthy of censure, it does not fit within any exception to absolute judicial immunity. The court affirmed dismissal of claims against the Board and Corporation; the First Amendment offers no protection to an attorney for his speech in court.View "Bright v. Gallia Cnty." on Justia Law

Jennifer Holmes and James Lindsay entered the home of Laurence Wilkey, Holmes's former boyfriend. They tied him up, beat him, and took a number of items from his home. The State charged Holmes and Lindsay with first degree robbery, burglary, kidnapping, assault, and firearm theft. Holmes and Lindsay argued that they did not intend to commit a felony but were instead repossessing things that Wilkey had originally stolen from Holmes. A jury convicted them on most, but not all, counts. On appeal, Holmes and Lindsay argued that the prosecutor's remarks, particularly during closing arguments, constituted misconduct that prejudiced both defendants. The Court of Appeals agreed that the prosecutor committed misconduct but split as to whether that misconduct caused prejudice. "[G]iven the magnitude of the problem and the lawyers' inability to control their conduct," the Supreme Court agreed with the Court of Appeals' dissent and reversed the trial court. View "Washington v. Lindsay" on Justia Law

Petitioner filed a petition for post-conviction relief (PCR) alleging ineffective assistance of counsel in his underlying criminal case because his lawyers induced him to reject a plea bargain for a much lower sentence "by misrepresenting the potential maximum sentencing exposure petitioner was facing at trial." The superior court appointed a lawyer from the Prisoners’ Rights Office of the Defender General to represent petitioner in that court. The appointed public defender accepted representation and proceeded to represent petitioner throughout the trial court proceeding. The State moved to dismiss the petition under 13 V.S.A. 7134 because it was "a second or successive motion for similar relief on behalf of the same prisoner." The public defender answered that the case did not fit within the statute because the theory on which this petition was based had not been raised in earlier PCR petitions because it was not available at the time of the earlier petitions. The superior court granted summary judgment for the State. Shortly thereafter, the public defender filed a notice of appeal on petitioner’s behalf. In a letter to petitioner, the public defender said she initially thought there were no grounds for appeal, but then said "I changed my opinion and filed a notice of appeal for you." She added, however, that since filing the notice of appeal she discovered the Defender General’s office had a conflict of interest so the case had been assigned to conflict counsel. The first assigned conflict counsel withdrew because her firm had done a merits review for the Defender General on petitioner’s ineffective-assistance-of-counsel claim in connection with a prior PCR action. Counsel concluded that the firm’s prior negative merits review created a conflict of interest. The case was then assigned to attorney Michael Rose. Attorney Rose filed a motion for leave to withdraw, citing Vermont Rule of Professional Conduct 3.1 and case law. Because it became clear during the argument on that motion that the Defender General had not gone through the procedure it typically goes through before seeking leave to withdraw on the basis cited by Attorney Rose, the Supreme Court invited the Defender General to present its position on the motion. Upon further review, the Supreme Court granted Attorney Rose’s motion for leave to withdraw, and it did not appoint new publicly funded counsel. View "In re Bruyette." on Justia Law

A client sued his lawyer for breach of contract, breach of fiduciary duty, misrepresentation, and professional negligence in a fee agreement dispute. After a jury found in favor of the lawyer and judgment was entered, the client appealed, arguing that the superior court erred by issuing certain jury instructions regarding contract interpretation and by denying the client's motion for a new trial or judgment notwithstanding the verdict. Upon review, the Supreme Court concluded that any error in the superior court's jury instructions was not prejudicial, and affirmed the superior court's decision to deny the client's post-trial motions because there was sufficient evidence for the jury to find for the lawyer on each of the claims. View "Zamarello v. Reges" on Justia Law

Petitioners Conley Hoskins and Jane Medicals, LLC, sought to vacate a trial court's order disqualifying the Peters Mair Wilcox (PMW) law firm as their counsel. The trial court disqualified the firm on the grounds that the firm previously represented another party, All Care Wellness, LLC, in the same matter for which PWM represented petitioners. Furthermore, the trial court concluded that All Care and petitioners had materially adverse interests. Petitioners argued on appeal to the Colorado Supreme Court that the trial court abused its discretion in disqualifying petitioners' retained counsel of choice. Upon review of the matter, the Supreme Court concluded the trial court record was insufficient to support the finding that the interests of petitioners and All Care were materially adverse to one another. Furthermore, the Court concluded the trial court indeed abused its discretion in disqualifying petitioners' counsel. The case was remanded for further proceedings. View "In re Colorado v. Hoskins" on Justia Law

FLIR filed suit against their former employees for, among other things, misappropriation of trade secrets (the underlying action). The former employees prevailed in the underlying action and they obtained a ruling that the misappropriation of trade secrets claim had been brought against them in bad faith, which resulted in an order that FLIR pay their attorney fees and costs. Thereafter, the former employees filed suit against the attorneys who represented FLIR in the underlying action, Latham, for malicious prosecution. Latham moved to strike the complaint under Code of Civil Procedure section 425.16 (the anti-SLAPP statute). The trial court granted the motion, concluding that the former employees were unable to establish a probability of prevailing on their malicious prosecution action because the action was untimely brought under Code of Civil Procedure section 340.6. However, the court agreed with the former employees that section 340.6 is not the appropriate statute of limitations for a malicious prosecution action and that the former employees have presented sufficient evidence that they otherwise have a probability of prevailing. Accordingly, the court reversed the judgment of the trial court. View "Parrish v. Latham & Watkins" on Justia Law

Defendant Michael Addison moved to disqualify the New Hampshire Attorney General’s Office from further participation in his case, and moved for the appointment of a special prosecutor. Defendant was convicted of capital murder and sentenced to death in 2008. In August 2009, Attorney Lisa Wolford, who had been employed by the New Hampshire Public Defender for approximately seven years, began working with the New Hampshire Appellate Defender. When Wolford began her rotation, the appellate defender office was preparing a brief regarding the standards applicable to our mandatory review of the defendant’s sentence. In early 2010, Wolford was reassigned from the defendant’s defense team. In March 2012, she submitted her resume to the attorney general’s office, requesting consideration for a position with the criminal justice bureau’s appeals division. Wolford was offered a position with the attorney general’s office; she began employment there in early July 2012. The defendant argued to the Supreme Court that it should "follow a line of cases that requires per se disqualification of an entire prosecutor’s office from a defendant’s case when (a) the defendant’s attorney switches sides and joins the prosecutor’s office in the middle of the case and (b) the defendant does not waive the conflict." The Supreme Court found Wolford had no involvement in the defendant’s case at the pre-trial or trial stages and participated in a limited aspect at one preliminary phase of the defendant’s multi-phased appeal approximately three years before joining the attorney general’s office. As such, the Court rejected defendant's per se argument, and further concluded defendant suffered no prejudice as a result in Wolford's change of employment. Accordingly, the Court denied defendant's motion to disqualify the Attorney General's office.View "New Hampshire v. Addison" on Justia Law

Thomas Hale filed for bankruptcy in 2005. During the course of that bankruptcy, he allegedly lied under oath and attempted to conceal from the bankruptcy trustee an agreement to sell property. After his relationship with the trustee became antagonistic, Hale sent her a package with unidentified material and a note that said, "Possible Haz-mat? Termites or Hanta virus [sic] from mice?" In 2013, Hale was convicted of making a materially false statement under oath in a bankruptcy case, concealing a contract from the bankruptcy trustee and creditors, and perpetrating a hoax regarding the transmission of a biological agent. Upon review of Hale's appeal, the Tenth Circuit affirmed in part and reversed in part: "instead of charging Hale with 'making a false declaration, certificate, verification, or statement under penalty of perjury' with regard to his representations in [his bankruptcy petition,] Hale was charged with falsely answering a temporally ambiguous question that inquired about numerous filings and was asked nearly a year after the documents were submitted. We do not think it proper to condone the prosecution’s creation of this ambiguity. We thus conclude that the error 'seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" The Court reversed the conviction with regard to the false statement, but affirmed in all other respects. View "United States v. Hale" on Justia Law