Justia Legal Ethics Opinion Summaries

Early in the proceedings in New Mexico ex rel. King v. Valley Meat Co., LLC, No. D-101- 3 CV-2013-3197 (Valley Meat case), A. Blair Dunn, counsel for Valley Meat Co., e-mailed an Inspection of Public Records Act (IPRA) request to First Judicial District Court Executive Officer Stephen Pacheco for production of, among other things, communications and records relating to the Valley Meat case, including “all communications between . . . Judge Matthew Wilson and his staff . . . and Court Clerk’s staff” and “[a]ny communications received by Judge Matthew Wilson and his staff, Judge Raymond Ortiz and his staff, and any member of the Court Clerk’s staff to/from any outside person or organization.” In this superintending control proceeding, the New Mexico Supreme Court clarified the constitutional and statutory procedures for IPRA enforcement actions to compel production of court records, and held that IPRA actions directed at a district court’s records had to be filed against the lawfully designated IPRA custodian and must be filed in the judicial district that maintains the records. Furthermore, the Court held that the contents of an officeholder’s personal election campaign, social media website, and the internal decision-making communications that are at the core of the constitutional duties of the judicial branch, such as preliminary drafts of judicial decisions, are not public records that are subject to mandatory disclosure and inspection under IPRA. View "Pacheco v. Hudson" on Justia Law

Zenor was employed by the Nevada Department of Transportation (NDOT) when he injured his wrist on the job. Eleven months later, Zenor underwent an examination and received an evaluation by his treating physician, Dr. Huene, who determined Zenor was not yet capable of performing his pre-injury job duties. Two months later, Dr. Huene again examined Zenor and determined he could fully use his wrist with a brace as needed. Less than one month later, Dr. Huene released Zenor "without limitations." Zenor delivered the full release to NDOT that same day. NDOT nonetheless commenced proceedings and separated him from employment for medical reasons. An administrative hearing officer reversed. The district court affirmed. Zenor sought attorney fees under NRS 18.010(2)(b) on the ground that NDOT unreasonably brought its petition to harass him. The court held that NRS 233B.130 prohibited attorney fees in a judicial action of a final agency decision. The Nevada Supreme Court affirmed. NRS 233B.130(6), which states that the provisions of NRS Chapter 233B provide the exclusive means of judicial action in a petition for judicial review, prohibits an award of attorney fees under NRS 18.010(2)(b) in petitions for judicial review. View "Zenor v. State of Nevada Department of Transportation" on Justia Law

Zenor was employed by the Nevada Department of Transportation (NDOT) when he injured his wrist on the job. Eleven months later, Zenor underwent an examination and received an evaluation by his treating physician, Dr. Huene, who determined Zenor was not yet capable of performing his pre-injury job duties. Two months later, Dr. Huene again examined Zenor and determined he could fully use his wrist with a brace as needed. Less than one month later, Dr. Huene released Zenor "without limitations." Zenor delivered the full release to NDOT that same day. NDOT nonetheless commenced proceedings and separated him from employment for medical reasons. An administrative hearing officer reversed. The district court affirmed. Zenor sought attorney fees under NRS 18.010(2)(b) on the ground that NDOT unreasonably brought its petition to harass him. The court held that NRS 233B.130 prohibited attorney fees in a judicial action of a final agency decision. The Nevada Supreme Court affirmed. NRS 233B.130(6), which states that the provisions of NRS Chapter 233B provide the exclusive means of judicial action in a petition for judicial review, prohibits an award of attorney fees under NRS 18.010(2)(b) in petitions for judicial review. View "Zenor v. State of Nevada Department of Transportation" on Justia Law

A Public Records Act request in this case was made on behalf of Fowler Packing Company, Inc. (Fowler) and Gerawan Farming, Inc. (Gerawan) in response to the 2015 enactment of Assembly Bill 1513 (AB 1513) codified in Labor Code section 226.2 (Stats. 2015, ch. 754, § 5 (2015 - 2016 Reg. Sess.) eff. Jan. 1, 2016). AB 1513 addressed the issue of minimum wages for employees paid on a piece-rate basis (i.e., paid per task) and included safeharbor provisions that provide employers with an affirmative defense against wage and hour claims based on piece-work compensation so long as back pay is timely made. The safe-harbor provisions contained carveouts that placed the safe-harbor provisions out of reach for several California companies including Fowler and Gerawan. The Public Records Act request at the heart of this case sought in pertinent part: “Any and all public records referring or relating to communications between the California Labor & Workforce Development Agency, its officers, and its staff and the United Farm Workers of America regarding AB 1513;” “Any and all public records referring or relating to the statutory carve out for any ‘claim asserted in a court pleading filed prior to March 1, 2014,’ as codified in AB 1513 section 226.2(g)(2)(A);” and, “Any and all public records referring or relating to AB 1513” and Fowler and Gerawan. The trial court ordered the Agency to produce “an index identifying the author, recipient (if any), general subject matter of the document, and the nature of the exemption claimed” to justify withholding information in response to a request for documents under the Public Records Act. The Agency petitioned for writ relief to the Court of Appeal to prevent disclosure of the identities of the parties with whom the Agency communicated confidentially in formulating AB 1513, the substance of these communications, and communications with the Office of Legislative Counsel (Legislative Counsel) during the drafting process. The Court of Appeal granted a stay and issued an alternative writ to allow consideration. Based on the California Supreme Court’s guidance in Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, the Court concluded the trial court’s order erred in requiring disclosure of matters protected by the deliberative process and attorney work product privileges. Accordingly, the trial court was directed to vacate its order directing the Agency to produce an index disclosing the author, recipient, and general subject matter of documents generated relating to the process of drafting AB 1513. View "Labor & Workforce Development Agency v. Superior Court" on Justia Law

Home Advocate Trustees, LLC (HAT) engaged in the unauthorized practice of law by providing legal counsel to Ohio residents whose Ohio real property was in foreclosure, as charged in a complaint by the Ohio State Bar Association.A panel of the Board of Commissioners on the Unauthorized Practice of law granted default judgment against HAT and recommended that the Supreme Court issue an injunction prohibiting HAT from engaging in further acts of the unauthorized practice of law and impose a civil penalty. The Board adopted the panel’s findings and recommendation. The Supreme Court adopted the Board’s findings of fact and determination that HAT engaged in the unauthorized practice of law, adopted the Board’s recommendation that an injunction prohibiting HAT from attempting to represent the legal interests of others performing legal services in Ohio, and agreed that HAT’s conduct warranted the imposition of civil penalties. View "Ohio State Bar Ass'n v. Home Advocate Trustees, L.L.C." on Justia Law

In this case challenging a county assessor’s ad valorem tax assessments, the Supreme Court affirmed the circuit court’s order granting the motion to dismiss filed by Appellees on the grounds that Appellants’ representative, a nonattorney, committed the unauthorized practice of law by signing a petition to appeal the tax assessment to the county court.The Supreme Court agreed with the circuit court for the reasons expressed in its opinion issued today in DeSoto Gathering Co., LLC v. Hill, 2017 Ark. 326, holding that the petitions for appeal were null and void because a corporation or its nonattorney officers or employees on its behalf are not authorized to practice law in Arkansas. View "USAC Leasing LLC v. Hill" on Justia Law

This case was a direct appeal in a judicial discipline case that resulted in Appellant Dawn Segal's removal from office as a municipal court judge in Philadelphia. In 2014, amidst a federal investigation encompassing electronic surveillance of telephone conversations in which she participated, Appellant reported to the Judicial Conduct Board (the “Board”) that she had ex parte communications with then-fellow- Municipal Court Judge Joseph Waters about several cases that were pending before her. FBI agents and federal prosecutors interviewed Appellant on several occasions, ultimately playing tapes of the intercepted conversations. The Board, which had already opened an investigation into the matter, proceeded to lodge a complaint against Appellant in the Court of Judicial Discipline (the “CJD”). The Board asserted violations of the then-prevailing Canons of Judicial Conduct, including Canon 2B, Canon 3A(4), Canon 3B(3), and Canon 3C(1). A federal prosecution of Waters was initiated, and he entered a negotiated guilty plea to mail fraud, and honest service wire fraud. Shortly thereafter, Appellant (through counsel) self-reported to the Board that she and Waters had had ex parte communications concerning pending cases. The correspondence stated that Appellant had not previously made these disclosures to the Board on account of a request from federal authorities to maintain confidentiality. In March 2015, the Board filed its complaint with the CJD. Finding the sanction imposed by the CJD as lawful, the Pennsylvania Supreme Court determined it lacked authority to disapprove it. As such, the CJD's decision was affirmed. View "In Re: Dawn Segal, Judge" on Justia Law

Kerr sought judicial review of the final determination that Kerr’s husband was not disabled and not entitled to any Social Security disability insurance benefits before his death. Kerr was due to receive any payment owed to Mr. Kerr. The parties stipulated to reversal and remand under 42 U.S.C. 405(g). Kerr then sought an award of $3,206.25 in attorney fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d), with any fees awarded “be made payable to Plaintiff’s counsel,” attaching an “Affidavit and Assignment of EAJA Fee.” The Commissioner did not oppose the motion. The district court granted the award, declined to honor Kerr’s assignment, and concluded that it was required to order payment to Kerr as the prevailing party. The court held that it could not “ignore the Anti-Assignment Act,” which prohibits “an assignment of a claim against the United States that is executed before the claim is allowed, before the amount of the claim is decided, and before a warrant for payment of the claim has been issued” but “le[ft] it to the Commissioner’s discretion to determine whether to waive the Anti-Assignment Act and make the fee payable to Mr. Marks.” The Commissioner responded that she would accept [Kerr’s] assignment and suggested that the court deny as moot Kerr’s Rule 59(e) motion. The district court and Sixth Circuit agreed that Kerr’s motion was moot, and did not reconsider the application of the AAA to the EAJA assignment. View "Kerr v. Commissioner of Social Security" on Justia Law

Rumsey, a Department of Justice employee, protested grant-making decisions and ultimately went to the media and members of Congress and filed a complaint with the Inspector General, alleging fraud. Her efforts resulted in corrective action. Rumsey alleged that the agency subsequently gave her improperly low performance ratings, moved some of her job duties to other employees, and canceled her telework agreement. She prevailed in an individual right of action appeal with the Merit Systems Protection Board, alleging whistleblower reprisal. Rumsey sought attorney’s fees under 5 U.S.C. 1221(g)(1)(B). At the time of that request, Rumsey and Slavet, one of the three lawyers that represented Rumsey during the Board proceedings, were in fee dispute before the District of Columbia Bar, Attorney/Client Arbitration Board. Rumsey “distanced herself from Slavet,” who had been Rumsey’s principal lawyer before and during the initial hearing before the administrative judge. The AJ had previously awarded sanctions based on Slavet’s failure to respond to discovery requests. The Board affirmed the AJ’s refusal to award attorney’s fees for Slavet’s services. Slavet and Rumsey settled their fee dispute, agreeing that Rumsey would pay $120,000 of the $145,445 sought by Slavet. The Federal Circuit reversed. Rumsey carried her burden of showing entitlement to some award of attorney’s fees. View "Rumsey v. Department of Justice" on Justia Law

The Judicial Tenure Commission (JTC) filed a formal complaint against Sixth Circuit Judge Lisa Gorcyca, alleging two counts of judicial misconduct arising from a hearing at which she found three children in contempt of court. The contempt hearing arose in the context of a protracted and acrimonious divorce and custody case. The two younger children, 10-year-old RT and 9-year-old NT, were ordered to participate in parenting time in respondent’s jury room with their father. LT was not scheduled for parenting time with his father on that day, but he came to the court with his siblings. After the children refused to communicate with their father, respondent held a show cause hearing to determine why all three children should not be held in contempt. Among other things, respondent told LT that he was defiant, contemptuous, and “mentally messed up.” She held him in direct contempt of court and ordered LT to be confined at Oakland County Children’s Village. Respondent then addressed RT and NT, who were initially apologetic and indicated that they would try to comply with the court’s order but later stated that they would prefer to go with LT to Children’s Village. All three children were handcuffed and removed from the courtroom. The JTC special master found respondent committed misconduct by: (1) finding LT in contempt of a nonexistent parenting-time order; (2) giving the children’s father the keys to the jailhouse thereby depriving the children of the opportunity to purge their contempt; (3) making a gesture indicating that LT was crazy and making disparaging remarks about the children; and (4) misrepresenting to the JTC that the gesture was intended to communicate LT’s moving forward with therapy. The JTC adopted the master’s findings with one exception: the JTC disagreed with the master that respondent misrepresented the meaning of the gesture and concluded that her answer was merely misleading. The JTC recommended that the appropriate discipline for respondent’s misconduct was a 30-day suspension without pay and costs. After review of the record the Michigan Supreme Court agreed in part with the Commission’s conclusion that respondent committed judicial misconduct, but was not persuaded that the recommended sanction was appropriate. Instead, the Court held public censure was proportionate to the judicial misconduct established by the record. The Court rejected the Commission’s recommendation to impose costs, fees, and expenses against respondent under MCR 9.205(B). View "In re Hon. Lisa Gorcyca" on Justia Law