Justia Legal Ethics Opinion Summaries

Plaintiffs, three Texas attorneys, filed suit against officers and directors of the State Bar of Texas under 42 U.S.C. 1983, alleging that the Bar is engaged in political and ideological activities that are not germane to its interests in regulating the legal profession and improving the quality of legal services. Plaintiffs therefore allege that compelling them to join the Bar and subsidize those activities violates their First Amendment rights. The district court granted summary judgment to the Bar.As a preliminary matter, the Fifth Circuit concluded that the Tax Injunction Act did not strip the district court of jurisdiction where neither membership fees and legal services fees are taxes. On the merits, the court vacated the district court's judgment, concluding that the district court erred in its reading of Lathrop v. Donahue, 367 U.S. 820 (1961), and Keller v. State Bar of California, 496 U.S. 1 (1990), and in its application of Keller's germaneness test on the Bar's activities. The court explained that Lathrop held that lawyers may constitutionally be mandated to join a bar association that solely regulates the legal profession and improves the quality of legal services; Keller identified that Lathrop did not decide whether lawyers may be constitutionally mandated to join a bar association that engages in other, nongermane activities; but Keller did not resolve that question. To determine whether compelling plaintiffs to join a bar that engages in non-germane activities violates their freedom of association, the court must decide (1) whether compelling plaintiffs to join burdens their rights and, (2) if so, whether it is nevertheless justified by a sufficient state interest.The court explained that plaintiffs are entitled to summary judgment on their freedom-of-association claim if the Bar is in fact engaged in non-germane activities. In this case, the Bar's legislative program is neither entirely germane nor wholly non-germane; the Bar's various diversity initiatives through OMA, though highly ideologically charged, are germane to the purposes identified in Keller; most, but not quite all, of the Bar's activities aimed at aiding the needy are germane; and miscellaneous activities—hosting an annual convention, running CLE programs, and publishing the Texas Bar Journal—are all germane. In sum, the Bar is engaged in non-germane activities, so compelling plaintiffs to join it violates their First Amendment rights. Furthermore, there are multiple other constitutional options. Assuming, arguendo, that plaintiffs can be required to join the Bar, compelling them to subsidize the Bar's non-germane activities violates their freedom of speech. The court also concluded that the Bar's procedures for separating chargeable from non-chargeable expenses is constitutionally inadequate under Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986).Accordingly, the court rendered partial summary judgment in favor of plaintiffs and remanded to the district court to determine the full scope of relief to which plaintiffs are entitled. The court additionally reversed the denial of plaintiffs' motion for a preliminary injunction and rendered a preliminary injunction preventing the Bar from requiring plaintiffs to join or pay dues pending completion of the remedies phase. View "McDonald v. Longley" on Justia Law

Plaintiff filed suit challenging Louisiana law that forces lawyers to join and pay annual dues to the Louisiana State Bar Association (LSBA). Plaintiff contends that compelling dues and membership violates his First Amendment rights, and that LSBA's failure to ensure that his dues are not used to fund the Bar's political and ideological activities also violates his First Amendment rights.The Fifth Circuit reversed the district court's dismissal of plaintiff's claims. The court concluded that Lathrop v. Donahue, 367 U.S. 820 (1961), and Keller v. State Bar of California, 496 U.S. 1 (1990), foreclose plaintiff's challenge to mandatory membership in LSBA. In this case, plaintiff's claim presents the (previously) open free association question from Keller (which the court closed today in this circuit with the court's concurrently issued opinion in McDonald v. Longley, No. 20-50448, __ F.3d __ (5th Cir. 2021)). The court also concluded that the Tax Injunction Act does not preclude federal courts from exercising jurisdiction over plaintiff's challenge to mandatory dues. The court explained that the bar dues are a fee, not a tax, and thus dismissal under the Act was improper. Finally, the court concluded that plaintiff has standing to pursue his claim that LSBA does not employ adequate procedures to safeguard his dues. The court found that plaintiff has pleaded an injury-in-fact by alleging that LSBA does not regularly provide notice of its expenditures with sufficient specificity. Accordingly, the court remanded for further proceedings. View "Boudreaux v. Louisiana State Bar Ass'n" on Justia Law

In 2019, the television program CBS This Morning broadcast interviews with two women who accused Fairfax, the Lieutenant Governor of Virginia, of sexual assault. Fairfax had previously denied the allegations. Although he admitted that both sexual encounters occurred, he claimed they were entirely consensual. The CBS interviewer, Gayle King read from a statement Fairfax had given CBS denying the allegations. King directed viewers to Fairfax’s full statement on CBS’s website. Fairfax later issued a public letter to a North Carolina district attorney, alleging for the first time the existence of an eyewitness. Fairfax demanded that CBS retract the interviews, and CBS refused. Fairfax sued CBS for defamation and intentional infliction of emotional distress. The district court dismissed the complaint in its entirety but denied CBS’s motion for attorney’s fees and costs finding that CBS established its entitlement to statutory immunity under Virginia’s anti-SLAPP (strategic lawsuit against public participation) statute.The Fourth Circuit affirmed. Fairfax’s complaint fails to plausibly allege that CBS made the allegedly defamatory statements with knowledge or reckless disregard of their falsity, as required to state a claim for defamation of a public official. The fee-shifting statute is discretionary, not mandatory or presumptive. Fairfax’s allegations did not plausibly allege that CBS broadcast its This Morning programs despite entertaining “serious doubts as to the truth” of those broadcasts. View "Fairfax v. CBS Corp." on Justia Law

Triplett pleaded guilty to three charges of human trafficking, pimping and pandering, and possession of a firearm by a felon, in exchange for the dismissal of 17 charges (including attempted first-degree homicide and kidnapping), which were to be “read-in” at sentencing (essentially allowing the judge to consider them as relevant conduct), Triplett’s total sentencing exposure was reduced from 354 years to a maximum of 47.5 years. The judge confirmed with defense counsel that the dismissed charges would be read-in. Defense counsel noted that Triplett did not admit the truth of the charges. In signing his plea agreement, Triplett acknowledged that “although the judge may consider read-in charges when imposing sentence, the maximum penalty will not be increased.” The judge ordered Triplett to serve 11 years in prison followed by nine years of supervision.Triplett unsuccessfully moved to withdraw his plea. Without conducting a hearing, the court determined that even if Triplett was given incorrect advice about the read-charges, Triplett was not prejudiced. The plea questionnaire and waiver of rights warned Triplett that the court could consider those charges. The court also represented that it had not considered the read-in charges at sentencing. Wisconsin's Court of Appeals and Supreme Court upheld the decision. The Seventh Circuit affirmed the denial of federal habeas relief. The Wisconsin court’s rejection of Triplett's ineffectiveness claim rests on an adequate, independent state ground--Triplett’s failure to allege objective facts in support of his claim of prejudice. View "Triplett v. McDermott" on Justia Law

Four appellants: David Zabel, Sheri Catania, Kim Flannigan, and Terra Morehead, were Assistant United States Attorneys (AUSAs) for the District of Kansas who testified in court about practices of the United States Attorney’s Office (USAO). At the close of the proceeding, the district court made statements reflecting negatively on the four AUSAs. They appealed, arguing the district court deprived them of due process. The Tenth Circuit dismissed the appeals for lack of appellate standing: as fact witnesses, the four AUSAs lacked a particularized and significant stake in the appeal. View "United States v. Carter" on Justia Law

This appeal grew out of United States v. Black, et al., which involved allegations of drug crimes committed at a detention facility. In the course of this prosecution, the United States Attorney’s Office in Kansas (USAO) obtained video and phone call recordings from the detention facility. Some of the recordings involved attorney-client communications between detainees and their attorneys. After learning that the USAO had these recordings, the Federal Public Defender (FPD) intervened for the defendants in Black, who had been housed at the detention facility. After intervening, the FPD moved for return of the recordings containing attorney-client communications, invoking Rule 41(g) of the Federal Rules of Criminal Procedure. This motion spurred the district court to order an investigation into the USAO and its possession of the recordings. When the investigation ended, the district court: (1) dismissed the indictment against the last remaining defendant in Black (Defendant. Karl Carter); and (2) ordered the USAO to provide the FPD with all of the recordings of attorney-client communications in the USAO’s possession. In the course of these rulings, however, the district court made statements adverse to the USAO and found contempt based partly on a failure to preserve evidence. The investigation led over a hundred prisoners to file post-conviction motions. The USAO didn’t question the dismissal of Carter’s indictment or the order to furnish the FPD with the recordings. Instead, the USAO argued that the investigation was unlawful, the district court made erroneous statements and findings about possible violations of the Sixth Amendment, the district court clearly erred in its contempt findings, and the district judge erred by stating that she would reassign herself to the post-conviction cases. The Tenth Circuit dismissed the appeal for lack of jurisdiction and prudential ripeness. View "United States v. Carter" on Justia Law

Thill was convicted of sexual contact with A.M.M., his ex‐girlfriend’s eight‐year‐old daughter. A.M.M. testified that Thill had sexually assaulted her; Thill’s semen was found on her underwear. Thill’s defense was that his jilted ex‐girlfriend framed him by saving his semen for over a year, planting it on her daughter’s underwear, and coaching her to make false accusations. While cross‐examining Thill and in closing arguments, the prosecutor referenced Thill’s failure to tell the police during his initial interview that he believed his ex‐girlfriend had the means or motivation to frame him. In postconviction proceedings, Thill argued that the prosecutor impermissibly used his silence after receiving Miranda warnings to impeach him and that his trial counsel was ineffective for failing to object. The Wisconsin Court of Appeals concluded Thill had not demonstrated prejudice.The Seventh Circuit affirmed, finding that conclusion not contrary to nor an unreasonable application of clearly established federal law. The state court correctly paraphrased Strickland’s prejudice standard and nothing in its analysis suggested it used a standard “‘substantially different’ from or ‘opposite to’” that standard. The state presented significant direct evidence of a specific sexual assault. Thill’s defense had significant holes that extended far beyond his failure to raise this defense to the police; it was “weak and unpersuasive” and largely rested on Thill’s “self‐serving testimony.” View "Thill v. Richardson" on Justia Law

In 2012, Manso-Zamora was convicted of conspiring to commit Hobbs Act robbery, three Hobbs Act robberies, and three counts of possessing and brandishing or discharging a firearm in furtherance of those robberies, and was sentenced to 776 months' imprisonment. In 2020, Manso-Zamora sought release under 18 U.S.C. 3582(c)(1), asserting that he was at high risk of severe illness or death from COVID-19. He was hospitalized for several weeks in 2019 for bone marrow aplastic anemia, inflammatory bowel disease, and low white blood cells and platelets. He noted his rehabilitation efforts and that, had he been sentenced under the 2018 First Step Act, he would not have been subject to mandatory consecutive 300-month sentences for his firearm convictions. The district court denied the motion. The Sixth Circuit allowed appointed counsel to withdraw and directed the clerk to appoint new counsel, then declined to consider Manso-Zamora’s pro se motions to voluntarily dismiss his appeal and to appoint a medical expert. Prisoners have no constitutional right to counsel in collateral post-conviction proceedings or in section 3582(c) proceedings. The "Anders" procedures are not required in section 3582(c) proceedings. Counsel is entitled to withdraw to honor his ethical obligation not to pursue a claim that he honestly believes to be frivolous. Given that Manso-Zamora and his attorney “disagree” about his medical conditions, it would be “unreasonable” to compel that attorney to continue providing services. View "United States v. Manso-Zamora" on Justia Law

Now in his sixties, Bridges has been in and out of prison since he was a teenager. After staying out of trouble for eight years, Bridges got involved in drugs again and committed four robberies in two days in 2017. He netted scarcely $700. Charged with four counts of Hobbs Act robbery, 18 U.S.C. 1951, Bridges agreed to plead guilty, stipulating that he was subject to the career offender enhancement, U.S.S.G. 4B1.1, which could apply only if his crimes of conviction were “crimes of violence” under the Guidelines. The enhancement more than doubled his sentencing range. The court imposed a below-guideline sentence of 140 months.Bridges sought postconviction relief, alleging he was denied effective assistance of counsel because his lawyer failed to argue that Hobbs Act robbery did not qualify as a “crime of violence.” At the time, there was no Seventh Circuit precedent on that issue. The district court denied relief. The Seventh Circuit reversed for an evidentiary hearing on defense counsel’s performance, joining other circuits that have concluded that Hobbs Act robbery is not a Guidelines “crime of violence.” When Bridges pleaded guilty, the building blocks for a successful legal argument were in place. Effective counsel would have considered this important question; minimal research would have uncovered a Tenth Circuit decision holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the Guideline definition of a crime of violence. View "Bridges v. United States" on Justia Law

Charged in Wisconsin state court with armed robbery and false imprisonment, Saechao retained attorney Kronenwetter. The state charged Alonso-Bermudez and others, based on the same crimes. Those cases proceeded separately. The public defender did not know that Kronenweer was representing Saechao when it appointed him to represent Alonso-Bermudez. Kronenwetter told the judge in Saechao’s prosecution that he was concerned about a potential conflict of interests. After six weeks, he withdrew as Alonso-Bermudez’s lawyer. The public defender named Bachman as his replacement. The Saechao judge wanted an unconditional waiver of any conflict from both defendants. Saechao provided one; Alonso-Bermudez declined. The prosecutor listed Alonso-Bermudez as a potential witness in Saechao’s case; the judge disqualified Kronenwetter. By then Bachman had indicated that Alonso-Bermudez was willing to sign a general waiver but Alonso-Bermudez fired him; the judge thought that Bachman no longer could speak for Alonso-Bermudez. Saechao went to trial with a new lawyer and was convicted. Wisconsin’s appellate court affirmed, rejecting his argument that the judge had violated the Constitution by depriving him of his chosen lawyer. The Seventh Circuit affirmed the denial of federal habeas relief. Wisconsin’s Court of Appeals reasonably applied Supreme Court precedent. The judge had the discretion to disqualify counsel to avoid a serious risk of conflict. and had at least one good reason for disqualification, the fact that Alonso-Bermudez appeared on the prosecution’s witness list. View "Saechao v. Eplett" on Justia Law