Justia Legal Ethics Opinion Summaries

Donald McKinley and Christopher Villasana sued the Texas Attorney General seeking a declaratory judgment that Texas Penal Code 38.12(d)(2)(A) and 38.12(d)(2)(C) (collectively, "Barratry Statute"), violated the Texas and United States Constitutions. At issue was whether the district court erred when it failed to dismiss the state law claims on Eleventh Amendment grounds; whether the district court should have dismissed both McKinley's and Villasana's claims for lack of standing; and whether the Barratry Statute violated the United State's Constitution's First Amendment guarantee to free speech. The court dismissed the state law claims and held that the Eleventh Amendment barred suit where Greg Abbott was sued in his official capacity as Attorney General of the State of Texas for violations of the Texas Constitution. The court also held that, because Villasana was a resident of Harris County and had not alleged that he practiced outside of the counties affected by the injunction, his claims were dismissed as moot. The court held, however, that McKinley had standing where his actions might violate the Barratry Statute and he had also established the necessary causal link and redressability. Because the Barratry Statute regulated speech that was lawful and not misleading, the court used the three-prong inquiry set forth in Central Hudson and held that the Barratry Statute did not violate the First Amendment's guarantee of free speech.

Plaintiff filed a complaint for breach of fiduciary duty, professional negligence, and breach of contract against defendants, an attorney and his law firm, where the attorney agreed to represent plaintiff in its effort to obtain approval of a redevelopment project, the attorney terminated the representation about two years later, and then the attorney became involved in a campaign to thwart the same redevelopment project by soliciting signatures on a referendum petition to overturn the city council's approval of the project. At issue was whether the court of appeals properly found that plaintiff's claims arose from protected activity in violation of the anti-strategic lawsuit against public participation ("anti-SLAPP") statute, Code Civ. Proc., 425.16, and whether plaintiff had failed to demonstrate a probability of prevailing on them. The court reversed the court of appeals and held that, based on the respective showings of the parties, plaintiff's claims for breach of fiduciary duty, professional negligence, and breach of contract possessed at least minimal merit within the meaning of the anti-SLAP statute.

Kristan Peters, an attorney admitted to the bars of both New York and Connecticut and formerly a partner at the law firm of Dorsey & Whitney, appealed from an order of the Committee on Grievances for the United States District Court for the Southern District of New York ("Grievance Committee") suspending her from practicing law before that court for a period of seven years. The Grievance Committee found that she had engaged in misconduct which involved instructing a junior attorney to deface transcripts ("Brackett allegation") and violating a confidentiality order ("Confidentiality Order allegation"). At issue was whether the Grievance Committee's failure to hold an independent hearing, and its reliance on a prior sanctions hearing in the underlying litigation, violated her due process rights and the district court's local rules. Also at issue was whether the two charges of misconduct now at issue did not, as a matter of law, support the Grievance Committee's imposition of discipline. The court held that Peters was not provided adequate prior notice of the Brackett allegation or adequate opportunity to cross-examine witnesses. The court also held that evidence concerning the Confidentiality Order allegation was not adequately developed during that prior proceeding so as to permit the Grievance Committee to forego an independent evidentiary hearing in the present matter. Therefore, the court vacated the Grievance Committee's suspension order and remanded the matter for the further proceedings.

The district court denied a petition for habeas corpus by an inmate serving 40 years for attempted murder and aggravated battery on a senior citizen and certified three issues as appealable. The Seventh Circuit clarified the obligation of appointed appellate counsel. Counsel has no obligation to argue claims, urged by the client, that were not certified as appealable, but could request amendment of the certificate if the claims are debatable. If counsel regards certified issues as frivolous those issues need not be argued and counsel should inform the court. Because prisoners do not have a right to appointed counsel on collateral claims there is no tension between the constitutional right to representation and the ethical obligation to not advance frivolous claims.