Justia Legal Ethics Opinion Summaries

Plaintiff Law Firm of Marc Grossman represented a student of defendant Victor Elementary School in a civil action arising from an assault that took place at the school. Plaintiff, in the name of the law firm, filed a petition for writ of mandate in the trial court under the Public Records Act seeking documentation reflecting the amount of money spent defending the litigation. That petition was denied, so relief was sought from the Court of Appeal, which granted the petition. Upon issuance of the remittitur, plaintiff filed a Memorandum of Costs seeking, among other costs, attorneys’ fees for the petition. The trial court granted defendant’s motion to tax costs, denying attorneys’ fees. Plaintiff appealed the denial of attorneys’ fees. On appeal, plaintiff argues the trial court erred in denying fees on the ground plaintiff represented itself in the trial court. Agreeing with plaintiff, the Court of Appeal reversed. View "Law Offices of Marc Grossman v. Victor Elementary School Dist." on Justia Law

"This is a case of egregious attorney misconduct." Because of the cumulative effect of the attorney's misconduct, the Court of Appeal felt compelled to reverse the judgment she obtained on behalf of her client, Caltrans. "While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed [the attorney] to emphasize irrelevant and inflammatory points concerning the plaintiff's character so often that he effectively gave CalTrans an unfair advantage." View "Martinez v. Dept. of Transportation" on Justia Law

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692, targets “independent debt collectors,” but excludes in-house collectors, including “any officer or employee of . . . any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.” In Ohio, consumer debts that remain uncollected by a state entity are “certified” to the Attorney General (OAG), which enlists “special counsel” as independent contractors for collections. Actions taken by special counsel are dictated by an agreement, which requires special counsel to comply with FDCPA standards. All collections must be endorsed to the OAG before special counsel is entitled to a fee. Special counsel were orally directed to use OAG letterhead for all collections (including consumer debts, although contrary to Ohio’s code). Plaintiffs filed suit, alleging violation of the FDCPA by use of OAG letterhead. The district court entered summary judgment, holding that special counsel are not “debt collectors” under the FDCPA, and that, even if they were, use of OAG letterhead was not a “false, deceptive or misleading” communication. The Sixth Circuit vacated. A jury could reasonably find that the use of the OAG letterhead by the “special counsel,” in the manner and under the circumstances present here, resulted in letters that were actually confusing to the least sophisticated consumer. View "Gillie v. Law Office of Eric A. Jones, LLC" on Justia Law

This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that Judge Sheva M. Sims of the Shreveport City Court, Caddo Parish, be suspended without pay for 90 days and ordered to reimburse the Commission's costs. The charge arose from an incident that occurred between Judge Sims and an assistant city prosecutor, Katherine Gilmer, on April 24, 2012, wherein Judge Sims stated that Ms. Gilmer was “held in contempt” of court and then ordered the dismissal of fifteen criminal cases on the docket that day. After reviewing the record and applicable law, the Supreme Court found that the charge against Judge Sims was supported by clear and convincing evidence. However, the Court rejected the recommended discipline and instead ordered Judge Sims be suspended without pay for a period of 30 days. Furthermore, the Court ordered Judge Sims to reimburse the Commission’s costs incurred relative to its investigation and prosecution of this case. View "In re: Judge Sheva M. Sims, Shreveport City Court, Caddo Parish" on Justia Law

After the FAA suspended petitioner's license as an airplane mechanic, the NTSB vacated the suspension and found that the FAA's position had been unreasonable and not substantially justified. Petitioner filed suit seeking recovery of legal fees and expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504(a)(1). The NTSB denied fee-shifting under the Act because it concluded that petitioner had not "incurred" the fees associated with his legal defense in the license suspension proceedings. The court held that the NTSB's conclusion was arbitrary and capricious where the NTSB should have considered that under the Alabama law of quantum meruit, petitioner was obligated to pay his attorneys for the value of their services. Therefore, petitioner "incurred" fees and may obtain EAJA fee-shifting. The court granted the petition, vacated the decision, and remanded for further proceedings. View "Roberts v. NTSB" on Justia Law

Flora worked as Luzerne County Public Defender from 1980- 2013. He became Chief Public Defender in 2010, maintaining a private practice. His predecessor had tried to secure additional funding by submitting weekly reports concerning excessive caseloads and staffing deficiencies. Flora obtained grant funding for representing juveniles, but was not able to obtain additional money for adult offenders. Flora reported that the existing level of resources did not allow the Office to provide constitutionally adequate representation. The County was unresponsive, so Flora refused representation to those not faced with incarceration. In 2012 Flora initiated a class action lawsuit on behalf of indigent defendants and sought an injunction to prevent his firing. The state court ordered the County to provide adequate funding and prohibited refusing representation to indigent defendants. While the parties were in mediation, the County approved new positions. The funding litigation followed the “Kids for Cash” scandal. From 2003-2008, about 50% of Luzerne County juvenile offenders appeared in court without counsel. Virtually all were adjudicated delinquent. Federal investigators uncovered that judges had accepted kickbacks from for-profit juvenile detention facilities to send unrepresented juveniles to those facilities. The Pennsylvania Supreme Court ordered vacatur and expungement of thousands of delinquency adjudications. Flora alleges that, in 2013, he learned that 3,000 adjudications had not been expunged and reported the matter. Flora was relieved of his duties. Flora sued, alleging retaliation for his funding lawsuit and for reporting noncompliance with the expungement order. The district court dismissed. The Third Circuit vacated, finding that, under the Supreme Court’s 2014 decision, Lane v. Franks, Flora pled facts sufficient to allege that he spoke as a citizen. View "Flora v. County of Luzerne" on Justia Law

The Division of Motor Vehicles (DMV) charged Twin County Motorsports, Inc. with violating N.C. Gen. * Stat. 20-183.7B(a)(3) for allowing a person not licensed as a safety inspection mechanic to perform safety inspections. Lance Cherry, an officer and shareholder of Twin County, requested a hearing before the DMV and appeared at the hearing on behalf of Twin County. After concluding that sufficient evidence sustained the finding that Twin County violated section 20-183.7B(a)(3), the hearing officer levied a civil penalty and suspended Twin County’s inspection license. The Commissioner of the DMV upheld the hearing officer’s order. Twin County appealed, arguing that Twin County, as a corporation, should not have been represented by Cherry, a nonattorney, at the DMV hearing. The trial court agreed and remanded the matter for a new hearing. The Supreme Court reversed, holding that a nonattorney’s appearance on behalf of a corporate entity before an administrative hearing officer does not constitute the unauthorized practice of law, and therefore, the trial court erred in reversing the DMV’s final agency decision in this case. View "In re Twin County Motorsports, Inc." on Justia Law

After prevailing in a condemnation action, petitioners-landowners moved for an award of attorneys' fees pursuant to section 28-2-510(B)(1) of the Eminent Domain Procedure Act. Contrary to petitioners' view, the circuit court determined attorneys' fees should be awarded based on an hourly rate via a lodestar calculation rather than the contingency fee agreement between Petitioners and their attorney. The Court of Appeals affirmed. The Supreme Court interpreted section 28-2-510 and concluded the General Assembly intended for attorneys' fees to be awarded based on a constellation of factors. Specifically, section 28-2-510(B)(1) mandated that in order for a prevailing landowner to recover reasonable attorneys' fees he or she must submit an application for fees "necessarily incurred." Therefore, by implication, the General Assembly precluded a landowner from recovering attorneys' fees based solely on a contingency fee agreement without regards for section 28-2-510. The Court explained that even though the contingency fee agreement is not the sole element in the calculation, it is still a significant component as it may be used to explain the basis for the fee charged by the landowner's counsel. "Our decision should not be construed as somehow condemning or eliminating an attorney's use of a contingency fee agreement. To the contrary, we recognize that the use of these agreements is a legitimate and well-established practice for attorneys throughout our state. This practice may still be pursued. Yet, it is with the caveat that the terms of the agreement are not controlling. Rather, they constitute one factor in a constellation of factors for the court's consideration in determining an award of reasonable litigation expenses to a prevailing landowner under section 28-2-510(B)(1). The court may, in fact, conclude that the contingency fee agreement yields a reasonable fee. However, the court is not bound by the terms of the agreement. " For this case, the Supreme Court held that the Court of Appeals misapplied case law precedent. Furthermore, the Court concluded the circuit court failed to conduct the correct statutory analysis, and remanded this matter to the circuit court. Petitioners' counsel was instructed to submit an itemized statement in compliance with section 28-2-510(B)(1) as counsel's original affidavit failed to identify the "fee charged" and the actual number of hours expended. View "South Carolina Dept. of Trans. v. Revels" on Justia Law

On May 15, 2012, Karl H. Lewies won the primary election for the position of Fremont County Prosecuting Attorney. Because he had no opponent in the general election, he knew he would be elected as the prosecuting attorney, and he was. He was scheduled to be sworn into office on January 14, 2013. On November 23, 2012, he filed two petitions for review against the county commissioners of Fremont County. One petition for review was on behalf of Flying "A"Ranch, Inc., and others, and the other petition was on behalf of E. C. Gwaltney, III. The petitions sought to overturn the designation by the county commissioners of certain roads as being public roads rather than private roads. In early 2013, the county commissioners, represented by Blake Hall, the deputy prosecutor hired by the prosecutor that Lewies had defeated in the primary, filed motions in both cases seeking to have Lewies disqualified from representing the petitioners in those cases. Lewies filed motions in both cases to withdraw as counsel for the petitioners. In each of the cases, Lewies had named two of the commissioners in both their official and individual capacities. The commissioners filed motions in both cases to dismiss the actions against them in their individual capacities. Substitution counsel entered appearances for the county commissioners in both cases. The court made preliminary rulings that Lewies could not represent any parties in the two cases; that the county would be awarded attorney fees against him personally for having to file the motion to disqualify; that an action against the two commissioners in their individual capacities could not be joined with a petition for judicial review; and that attorney fees would not be awarded against Lewies for having named them in their individual capacities. During the hearing, Lewies contended that substitution counsel should have been disqualified from representing the commissioners and that a deputy prosecutor should represent them. Ultimately the trial court entered a written order affirming its preliminary rulings. After several hearings, the court entered its memorandum decision in both cases awarding the county attorney fees in the sum of $1,185.00 against Mr. Lewies personally pursuant to Rule 11(a)(1), and Lewies appealed. Because there was no legal basis for the award, the Supreme Court reversed. View "Lewies v. Fremont County" on Justia Law

There is no hospital in Valencia County. People in Valencia County who are faced with a medical emergency must deal with the emergency itself, and find a way to travel twenty to thirty-five miles to an Albuquerque hospital. Ambulances coming from Valencia County can take two hours or longer to transport a patient to the nearest hospital, process the patient, and return. The long turnaround times mean that ambulance companies sometimes run at full capacity, or “zero status,” and cannot respond to calls from new patients because all available ambulances are in use. Since 1987, appellant Living Cross Ambulance Service has been the only ambulance company in Valencia County operating under a permanent certificate from the Public Regulation Commission (PRC). Living Cross has been at zero status and unavailable to transport patients for less than one percent of ambulance service requests. When Living Cross is at zero status, dispatch requests mutual aid from a nearby ambulance company, and if those mutual aid ambulances are also unavailable, the municipality whose EMTs first responded to the scene must transport the patients at the municipality’s expense. This case was a direct appeal from a final order of the Public Regulation Commission (PRC) granting a permanent certificate to American Medical Response Ambulance Service, Inc. d/b/a American Medical Response, Emergicare (AMR) for both emergency and nonemergency ambulance service in Valencia County. Living Cross petitioned the New Mexico Supreme Court to vacate the final order of the PRC, claiming that the PRC acted arbitrarily and capriciously by granting AMR’s certificate because there was no evidence of need for non-emergency ambulance service in Valencia County, and because there was insufficient evidence of need for additional emergency ambulance service. Living Cross also claimed that the PRC abused its discretion by allowing Living Cross’s former attorney to represent AMR in an initial hearing before ruling on its motion to disqualify the attorney. Upon review, the Supreme Court held that the PRC decision to allow the former Living Cross attorney to appear for AMR during the hearing for the temporary permit was contrary to law, and that the wholesale admission of the record from that hearing as evidence in the hearing for the permanent certificate was plain error, requiring reversal. Because the Court determined that the attorney disqualification issue is dispositive, it did not reach the other issues in this case. View "Living Cross Ambulance Serv. v. N.M. Pub. Regulation Comm'n" on Justia Law