Justia Legal Ethics Opinion Summaries

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

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

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

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

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

The Fifth Circuit affirmed the district court's denial of a preliminary injunction seeking to prohibit the Harris County District Attorney (DA) from enforcing a Texas anti-barratry law. The court concluded that plaintiff has not shown that his First Amendment claim is likely to succeed on the merits where the anti-barratry law is likely narrowly tailored to a compelling government interest in preventing confusion that damages relationships between appointed counsel and indigent defendants. The court declined plaintiff's request to assign the case to a different district judge on remand, concluding that this case does not merit reassignment under either of the two relevant tests. View "Willey v. Harris County District Attorney" on Justia Law

Bell, Hernandez, and Rayas, fraudulently promised victims that they could save their homes from foreclosure or lower their mortgage payments. They targeted monolingual Spanish‐speakers. They charged a $5,000-$10,000 "membership fee" and spent the fees on personal expenses. Their fraudulent entity never prevented a foreclosure. More than 60 homeowners joined, losing almost $260,000.Bell, Hernandez, and Rayas were charged with mail fraud, 18 U.S.C. 1341. Although Bell consistently refused legal representation, the district court assigned an experienced stand-by attorney. On the eve of trial, Bell moved to retain Joyce, who was newly admitted to the Illinois bar, had never tried a case, and had met Bell at the Metropolitan Correctional Center days earlier, at the behest of Eliades, co‐defendant Rayas’s counsel. Later, Eliades and Joyce denied that Eliades asked Joyce to visit Bell. Conflict attorneys from the Federal Public Defender’s Office discussed the situation with Bell and Rayas separately and held a conflict hearing for Hernandez. Rayas and Hernandez chose new attorneys. Bell insisted on Joyce, signing a waiver in which he acknowledged his right to conflict‐free counsel and the potential conflicts associated with Joyce.Convicted, Bell was sentenced to 150 months’ imprisonment and ordered to pay $259,211 in restitution. The Seventh Circuit affirmed. Bell’s waiver was knowing and voluntary; he has not demonstrated actual or serious potential for conflict that would have obliged the court to disregard his waiver. View "United States v. Bell" on Justia Law

Burkhart, the CEO of ASC, a private company that operates Indiana nursing homes and long-term care facilities, orchestrated an extensive conspiracy exploiting the company’s operations and business relationships for personal gain. Most of the funds involved in the scheme came from Medicare and Medicaid. After other defendants pled guilty and Burkhart’s brother agreed to testify against him, Burkhart pled guilty to conspiracy to commit mail, wire, and healthcare fraud (18 U.S.C. 1349); conspiracy to violate the AntiKickback Statute (18 U.S.C. 371); and money laundering (18 U.S.C. 1956(a)(1)(B)(i)). With a Guidelines range of 121-151 months, Burkhart was sentenced to 114 months’ imprisonment.Burkhart later filed a habeas action, contending that his defense counsel, Barnes & Thornburg provided constitutionally deficient representation because the firm also represented Health and Hospital Corporation of Marion County, a victim of the fraudulent scheme. The Seventh Circuit affirmed the denial of relief. While the firm labored under an actual conflict of interest, that conflict did not adversely affect Burkhart’s representation. Nothing in the record shows that the firm improperly shaded its advice to induce Burkhart to plead guilty; the advice reflected a reasonable response to the “dire circumstances” facing Burkhart. The evidence of Burkhart’s guilt was overwhelming. View "Burkhart v. United States" on Justia Law

The question this case presented for the Court of Appeal's review centered on when a lawyer's settlement demand crosses the line and becomes professional misconduct. Falcon Brands, Inc. and Coastal Harvest II, LLC (collectively Falcon) appealed an order granting respondent’s special motion to strike both causes of action in Falcon’s cross-complaint pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP law). The cross-complaint alleges extortion and intentional interference with a contract against attorney Amy Mousavi and her law firm, Mousavi & Lee, LLP (collectively Mousavi). Falcon argued Mousavi’s e-mail settlement demands, which were the focus of Falcon’s cross-complaint, were not entitled to protection under the anti-SLAPP law because they constituted illegal attempts to force Falcon into settling the underlying matter. The trial court rejected this argument and granted Mousavi’s anti-SLAPP motion. The Court of Appeal reversed as to the first cause of action for extortion because it concluded Mousavi’s e-mail settlement demands, when considered in context, were not protected speech in light of the Supreme Court’s ruling in Flatley v. Mauro, 39 Cal.4th 299 (2006). "Mousavi’s escalating series of threats ultimately transformed what had been legitimate demands into something else: extortion." The Court affirmed as to the second cause of action, intentional interference with a contract. That cause of action arose from Mousavi’s actual revelation of damaging information about Falcon to Falcon’s merger partner. Falcon did not contend the revelations were illegal as a matter of law. The revelations were made in furtherance of Mousavi’s contemplated litigation. The Court found the trial court correctly concluded the revelations were protected by the litigation privilege. Consequently, they were also protected by the anti-SLAPP statute. View "Falcon Brands, Inc. v. Mousavi & Lee, LLP" on Justia Law

Plaintiffs alleged that the bail schedule set by the San Francisco Superior Court, an arm of the state, violated their equal protection and due process rights, 42 U.S.C. 1983 because it failed to take into account pre-arraignment detainees’ inability to pay pre-set mandatory bail amounts. Following years of litigation, the district court enjoined the Sheriff, who had Eleventh Amendment immunity from damages, from enforcing the bail schedule and any other state determination that made the existence or duration of pre-trial detention dependent on the detainee’s ability to pay. The court then awarded a reduced lodestar amount of attorney’s fees ($1,950,000.00) to the class and held California responsible for payment.The Ninth Circuit affirmed the award, rejecting arguments that the state was not liable for fees because it was dismissed from the case on the ground of Eleventh Amendment immunity and did not otherwise participate in the litigation. Despite Eleventh Amendment immunity, the Sheriff could be sued in her capacity as a state official for injunctive relief, and the state could be assessed a reasonable attorney’s fee under 42 U.S.C. 1988. The state had the necessary notice and an opportunity to respond to claims that the official-capacity suit against the Sheriff could properly be treated as a suit against California. View "Buffin v. City & County of San Francisco" on Justia Law