Justia Legal Ethics Opinion Summaries

Holly Cook appealed an administrative order entered by an Administrative District Judge (“ADJ”) declaring her to be a vexatious litigant pursuant to Idaho Court Administrative Rule 59. The order prohibited Cook from filing any new litigation pro se in Idaho without first obtaining leave of the court where the litigation was proposed to be filed. Ms. Cook petitioned for a divorce from her husband (“Mr. Cook”) in 2015. During the lengthy and contentious divorce proceedings, Ms. Cook had assistance of counsel for portions of the proceedings, but represented herself pro se when she did not. Some aspects of the divorce proceedings were appealed to the district court. Mr. Cook filed a moved that Ms. Cook declared a vexatious litigant. Neither party requested a hearing on Mr. Cook’s motion. The district judge presiding over the appeal referred the matter to the ADJ. The ADJ found that Ms. Cook largely failed to appear at dates set in scheduling orders that she (with and without counsel) agreed to. She failed at obtaining continuances, at having the trial judge disqualified, and to move the court for reconsideration of many intermediate decisions. She attempted to collaterally attack the default judgment of divorce, and at some point, was held in contempt for failing to respond to court orders during the divorce proceedings. Separate from the divorce proceedings, the ADJ noted Ms. Cook had filed nine pro se civil protection orders, all of which had been dismissed in favor of the parties from whom she sought protection. The Idaho Supreme Court determined the ADJ abused its discretion in declaring Ms. Cook a vexatious litigant; the ADJ did not review the merits and reason for dismissal in the nine civil protection actions, causing the ADJ to conclude incorrectly the final determinations were adverse to her. Furthermore, with respect to the divorce proceedings, the Court determined the ADJ abused its discretion by failing to make factual findings that Ms. Cook repeatedly attempted to relitigate issues already finally decided by the magistrate court. The Supreme Court concluded the ADJ did not make sufficient findings to support the conclusion that Ms. Cook’s filings were frivolous, unmeritorious, or filed with the intent to cause unnecessary delay. Accordingly, the Court reversed the prefiling order and remanded to allow the ADJ the opportunity to reconsider this matter. View "Cook v. Wiebe" on Justia Law

The Supreme Court affirmed the decision of the court of appeals reversing the circuit court's denial of Father's motion for reconsideration of the circuit court's ruling in favor of Mother in a custody dispute, holding that the "extreme" facts of this case rebutted the presumption of judicial impartiality and established a due process violation.The circuit court judge accepted Mother's Facebook "friend request" after a contested hearing but before rendering a decision. During the twenty-five days between the judge's acceptance of Mother's friend request and his issuance of a written decision entirely in her favor, Mother engaged with and reacted to at least twenty of the judge's Facebook posts. Mother further "shared" and "liked" several third-party posts related to an issue that was contested at the hearing. After discovering the Facebook friendship and communications, which the judge never disclosed, Father moved the circuit court for reconsideration, requesting judicial disqualification and a new hearing. The judge denied the motion. The court of appeals reversed and remanded the case with directions that the court proceed before a different circuit court judge. The Supreme Court affirmed, holding that the circumstances and facts of this case rose to the level of a serious risk of actual bias, which rebutted the presumption of the judge's impartiality. View "Miller v. Carroll" on Justia Law

Patricia petitioned for the dissolution of her marriage to Thomas in 2001. A dissolution judgment entered in 2002; a judgment on reserved issues entered in 2008. In 2005, trial court Commissioner Oleon determined, based Thomas’s conduct in the dissolution proceedings and two separate civil actions, that Thomas was a vexatious litigant, and issued an order, prohibiting him from filing any new litigation or motion in propria persona without obtaining leave of the presiding judge. Thomas was also ordered to cover Patricia's attorney fees. In 2006, Thomas unsuccessfully moved (Code of Civil Procedure 170.1) to have Oleon disqualified. Weeks later, Thomas filed another section 170.1 challenge; the court failed to timely respond. Months later, notwithstanding his disqualification, Oleon reentered his previous vexatious litigant orders, effective from 7/29/05 because, when entering his original orders, he neglected to file a mandatory form.In 2018, Thomas complained to the presiding judge regarding Oleon’s post-disqualification involvement. The court issued an order to show cause, then reaffirmed that Thomas qualifies as a vexatious litigant and reimposed the pre-filing order. The court of appeal affirmed, noting that “Thomas appears to have used the opportunity ... to make implicit threats against various members of the California judiciary and State Bar.” The court upheld the 2018 orders as supported by substantial evidence and rejected an argument that a nonplaintiff litigant cannot be designated a vexatious litigant. View "Marriage of Deal" on Justia Law

Following a child custody hearing in January 2017, the trial court entered an order giving Mother sole custody. In June 2017, Father filed an unsuccessful request to set aside that order. Weeks later, he filed a second unsuccessful request to modify the order. The trial court denied Mother’s request for section 271 sanctions. Months later, she again sought sanctions relating to the June 2017 motion. Father filed an objection but did not challenge the motion on the basis of timeliness. The court ordered Father to pay $10,000 in section 271 sanctions. Father sought reconsideration, arguing for the first time that the sanction request was untimely under California Rules of Court, rule 3.1702(b). The trial court denied the motion and awarded Mother $3,000 in attorney fee sanctions for having to defend the ex parte motion for reconsideration.The court of appeal affirmed. Rule 3.1702(b) states: “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court—including attorney’s fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal.” The timing of a notice of appeal is based on the entry of judgment. The sanctions at issue were awarded for attorney fees incurred after entry of the January 2017 judgment; rule 3.1702 does not apply. View "George v. Shams-Shirazi" on Justia Law

In June 2016, shortly after the child’s birth, the Boulder County Department of Housing and Human Services initiated this case based on evidence that the child’s mother was using drugs and that both father and the child’s mother were missing the child’s cues, were homeless, and had previously been involved in child welfare cases. The child was placed with maternal relatives. As pertinent here, the juvenile court adjudicated the child dependent and neglected as to father based on father’s admission that he needed support and services and that the child’s environment was injurious to her welfare. At the first hearing in the juvenile court, father appeared in custody following a recent arrest. The court appointed counsel for him and approved an initial treatment plan. Two months later, the court conducted another hearing, and father again appeared in custody, this time based on new drug possession charges. The Department filed a motion to terminate father’s parental rights. In this petition, the Department alleged that (1) father did not comply with his treatment plan, and the treatment plan failed; (2) no additional period of time would allow for the successful completion of the treatment plan; (3) father was an unfit parent; (4) father’s conduct or condition was unlikely to change within a reasonable period of time; and (5) there were no less drastic alternatives to termination, which would be in the child’s best interests. The matter then proceeded to a termination hearing; father was incarcerated. When father did not appear for the hearing, father’s counsel told the court that father was “on a writ at Arapahoe County and he refused the writ so he did not want to appear today.” Father’s counsel did not seek a continuance to ensure father’s presence, and the court found that father had voluntarily absented himself from the court. Mother was denied her request for a continuance. The issue this case presented for the Colorado Supreme Court’s review was similar to that decided in its companion, Colorado in Interest of A.R., 2020 CO 10, __ P.3d __. Here, as in A.R., the Supreme Court was asked to decide (1) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance and (2) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development. Applying those principles here, the Court concluded the juvenile court correctly applied Strickland’s prejudice prong to father’s ineffective assistance of counsel claims and that the court did not abuse its discretion in rejecting those claims. View "M.A.W. v. The People in Interest of A.L.W." on Justia Law

The issue this case presented for the Colorado Supreme Court’s review centered on the contention of ineffective assistance of counsel in the context of a dependency and neglect proceeding. In 2016, petitioner A.R.’s (the “child’s”) paternal step-grandmother took him to the emergency room to receive treatment for scabies. A physician who treated the then-six-month-old child determined that the degree of scabies on the child evinced a case of neglect, and, later that night, another doctor confirmed that the child also had a skull fracture. The Department of Human Services subsequently initiated this dependency and neglect proceeding, and the juvenile court granted the Department continued custody of the child. Later, the juvenile court held an adjudicatory hearing with respect to both parents. When mother did not appear, her counsel told the court that he had made arrangements with mother to attend the hearing, but did not know why she did not appear. Apparently in an effort to move the case forward, and after speaking with counsel for both mother and the child’s father (who also did not appear), the Department asked the court for leave to amend the Department’s dependency and neglect petition to include an allegation that the child was dependent or neglected through no fault of the child’s parents and to allow the Department to rest on the Report of Investigation filed with the petition. The child’s guardian ad litem (“GAL”) agreed with this procedure, stating that it was in the child’s best interests to “move forward,” and the court therefore entered a no-fault adjudication and approved the proposed treatment plan. Mother did not appeal this adjudication. The mother challenged the ultimate termination of her rights to A.R. The Supreme Court was asked to decide: (1) whether, in a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing; (2) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance; and (3) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development. The Supreme Court held an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing only when the party claiming ineffective assistance did not have a full and fair opportunity to assert such a claim immediately after his or her child was adjudicated dependent and neglected, and outlined the standard for determining ineffective performance in a dependency and neglect context. Applying these determinations to the facts and claims presented, the Court affirmed the judgment below (on different grounds), and remanded for further proceedings. View "Colorado in Interest of A.R." on Justia Law

Alden and his ex-wife shared custody of their children. Alden’s ex-wife complained that Alden was trying to turn the children against her. The court-appointed psychologist, Gardner, evaluated the children, concluded that Alden was using “severe alienation tactics,” and recommended that the court limit Alden to supervised visitation and give full custody of the children to their mother. The court terminated Alden’s custody and ordered all of Alden’s visitation to be supervised. The Appellate Court affirmed. After three unsuccessful attempts to change the decision in state court, Alden filed suit under 42 U.S.C. 1983 against Gardner, challenging the Illinois Marriage and Dissolution of Marriage Act as permitting state courts to take parents’ constitutionally-protected speech into consideration when deciding the best interests of the child and treating parents differently based on whether they are divorced. The district court dismissed for lack of standing. The Seventh Circuit affirmed, noting that Alden could challenge the Act in his state custody proceedings. The court stated: “This is abusive litigation. Alden, a lawyer representing himself, seems determined to continue the child-custody litigation in another forum even if that means exposing an innocent person such as Gardner to travail and expense. He concedes—indeed, he trumpets—that he has sued someone who he knows is not responsible for enforcing the state’s child-custody laws” and referred the matter to Illinois authorities for determination of whether Alden’s misuse of the legal process calls into question his fitness to practice law. View "E.A. v. Gardner" on Justia Law

In this child custody dispute, the trial court imposed $50,000 in sanctions jointly and severally against an attorney and her client for disclosing information contained in a confidential child custody evaluation report. The Court of Appeal affirmed in part and held that the trial court did not abuse its discretion by imposing sanctions on the attorney. In this case, the attorney intentionally asked questions regarding a child custody evaluation that included a psychological evaluation which disclosed highly personal information about the child and her family. The court concluded that the attorney's actions were reckless. However, the court reversed in part and held that there was nothing in the record to suggest that the client directed or even encouraged the attorney to disclose privileged information. View "Anka v. Yeager" on Justia Law

A responding party's request for sanction-based attorney fees under Family Code section 271 is not a request for affirmative relief. In this dissolution case, the Court of Appeal affirmed the award of sanctions in the form of attorney fees. The court held that, because wife's request for attorney fees under section 271 was not a request for "affirmative relief," she did not run afoul of section 213 by requesting those fees in her responsive pleadings. The court also held that, because this issue was one of first impression based on husband's colorable interpretation of the law, the court denied wife's request that it order husband to pay her attorney fees on appeal as a sanction for filing an appeal that was "totally and completely without merit." Finally, the court held that wife’s request for attorney fees under section 271 was not a request for “affirmative relief,” she did not run afoul of section 213 by requesting those fees in her responsive pleadings. Finally, husband's argument that wife's February 2016 request was barred by the doctrines of collateral estoppel and res judicata was foreclosed. View "Perow v. Uzelac" on Justia Law

After ex-wife filed a civil action alleging that ex-husband siphoned some of the community assets that were subject to a stipulated judgment, ex-husband successfully demurred and obtained a judgment of dismissal against ex-wife's civil action. Ex-husband then moved in the family court under the stipulated judgment's attorney fees provision to recover fees and costs he incurred in connection with the civil action.The Court of Appeal affirmed the family law court's award of fees and costs, holding that the attorney fees provision in the stipulated judgment encompassed these fees and costs because of its broad language, particularly, the phrase "in connection therewith." The court also held that the family law court did not abuse its discretion in deeming ex-husband the prevailing party because he obtained a judgment of dismissal against ex-wife's civil suit thereby achieving his litigation objectives, which was the applicable standard. Finally, the court held that the family law court did not abuse its discretion in awarding $90,000 in attorney fees and costs, and finding that counsel's hourly rates and number of charged hours were reasonable. View "Pont v. Pont" on Justia Law