Justia Legal Ethics Opinion Summaries

The circuit court entered an order denying Jimmy Mann's petition to intervene in a dependency-neglect case. Mann filed an unsigned notice of appeal belatedly. The Arkansas Department of Human Services (DHS) moved to dismiss the appeal, arguing that the notice of appeal filed by Mann was untimely and was not signed as required by Ark. Sup. Ct. R. 6-9(b)(1)(B). Mann later filed a motion for belated appeal. The Supreme Court denied DHS's motion to dismiss and granted Mann's motion for belated appeal, holding (1) it was plain from the motion and response that relief was proper; and (2) because there was attorney error in perfecting the appeal in this case, the attorney was referred to the Committee on Professional Conduct for appropriate action. View "Mann v. Ark. Dep't of Human Servs." on Justia Law

In 2003, wife filed domestic battery charges against husband; he was found not guilty and filed for dissolution. At a 2005 hearing on a motion to modify temporary child support, the judge stated that the parties had been before him in the domestic battery case. Neither lawyer objected. Nearly a year later, husband sought substitution of judge, asserting bias. Wife testified that she worked part-time at a fitness club where the judge was a member, but had only said "hello," twice, in passing; husband testified that wife had indicated that she was "taking care of" the judge and that the judge had disclosed that wife had approached him several times. The petition was denied for lack of proof of actual prejudice. The appellate court and highest court affirmed. The "actual prejudice" standard was properly applied; a proposed "appearance of impropriety" standard would encourage judge-shopping. A litigant is entitled to one automatic substitution if requested before trial or hearing begins and before the assigned judge has ruled on any substantial issue, 735 ILCS 5/2–1001(a)(2)(ii). After a substantive ruling, however, (a)(3) requires substitution only when cause exists. The statute does not define "cause," but recusal is required when the probability of actual bias is too high to be constitutionally tolerable.

Jamyia, a minor child of Navajo decent, was removed from her parents' home after doctors discovered that Jamyia suffered injuries consistent with shaken baby syndrome. The juvenile court entered a dispositional order that terminated the parents' parental rights. On appeal, the court of appeals reversed, holding (1) the State had not proved it made active efforts pursuant to Neb. Rev. Stat. 43-1505(4) to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts had been unsuccessful; and (2) the State was required to provide active efforts to both parents to prevent the breakup of the family within the meaning of the statute when aggravated circumstances were present. The Supreme Court reversed the judgment of the appellate court, holding that the court of appeals did not have jurisdiction to reach the active efforts issue, and it erred when it reversed the juvenile court's determination that the State had satisfied the statute before terminating the parents' parental rights.

Petitioner filed a petition for dissolution in district court and the only contested issue between the parties was the valuation and division of the marital home and surrounding acreage, which was purchased for $45,000 in the mid-1990's. Petitioner had obtained a letter from a realtor stating that the marital home could be worth approximately $250,000-275,000 if the home was in good condition. At issue was whether the district court abused its discretion when it denied petitioner's M.R.Civ.P. 60(b)(6) motion, which was filed after the district court found the marital home was valued at $22,423, where petitioner alleged that her attorney grossly neglected her case when she failed to identify the realtor as an expert, or any other qualified real estate expert, and failed to prepare any evidence for trial to reflect petitioner's estimated value of the marital home. The court held that under the unique circumstances, where the district court had a statutory obligation to equitably apportion the marital estate and petitioner's counsel totally failed to present evidence on the issue, the district court abused its discretion in denying her Rule 60(b)(6) motion and should have granted the motion, thereby allowing her to present evidence regarding the value of the marital home so that the district court could make an equitable distribution. Accordingly, the court reversed and remanded for further proceedings.