Justia Legal Ethics Opinion Summaries

Plaintiff and Spouse divorced in 1979. In postdissolution proceedings during which Plaintiff sought modification of the alimony award, Spouse was represented by several different attorneys (Defendants). All defendants failed to disclose the true financial circumstances of Spouse. In 2008, the trial court ruled that information concerning Spouse's inheritance had been concealed from Plaintiff, causing Plaintiff to incur more than $400,000 in legal expenses and other costs. Plaintiff subsequently filed an amended complaint against Defendants for fraud and intentional infliction of emotional distress. The superior court rendered judgment in favor of Defendants, concluding that such claims against attorneys for conduct that occurred during judicial proceedings were barred as a matter of law by the doctrine of absolute immunity. The appellate court affirmed, determining that the claims were precluded by the litigation privilege. The Supreme Court affirmed, holding (1) the appellate court properly determined that attorneys are protected by the litigation privilege against claims of fraud for their conduct during judicial proceedings; and (2) therefore, Plaintiff's claim of intentional infliction of emotional distress, which was derivative of his claim of fraud, was also properly rejected. View "Simms v. Seaman" on Justia Law

During a meeting with staff members of defendants Rutgers University and the University of Medicine and Dentistry of New Jersey (UMDNJ), plaintiff D.D. disclosed private health information that she requested be kept confidential. D.D. later discovered press releases issued by defendants that disclosed her private health information. Plaintiff immediately sent a letter directing defendants to cease and desist from communicating her personal information. Shortly thereafter, plaintiff, accompanied by counsel, met with representatives of defendants, accompanied by counsel. According to plaintiff, based on apologies and assurances made during the meeting, she believed that the matter could be handled privately. Plaintiff’s attorney subsequently asked plaintiff for additional information, which she promptly provided. Although her attorney assured her that he would "take care of everything," he was thereafter unresponsive to her efforts to contact him, which included at least ten telephone calls. Because she was unable to reach him, plaintiff retained new counsel in April 2010. The issue before the Supreme Court in this matter was: (1) whether the inattention of plaintiff’s counsel or her medical conditions constituted the "extraordinary circumstances" needed to excuse an untimely notice of tort claim under the New Jersey Tort Claims Act (TCA); and (2) whether a timely oral notice of tort claim could be permitted under the doctrine of substantial compliance. Upon review, the Supreme Court concluded that neither attorney inattention nor incompetence constituted an extraordinary circumstance sufficient to excuse failure to comply with the ninety-day filing deadline under the TCA; plaintiff's medical proofs were insufficient to meet the extraordinary circumstances standard; and the doctrine of substantial compliance could not serve to relieve a claimant of the TCA's written-notice requirement. View "D.D. v. Univer. of Med. & Dentistry of New Jersey" on Justia Law

Plaintiff filed a lawsuit against his employer, Union Pacific, for injuries he sustained at a railyard operated by Gunderson. Union Pacific filed a third-party complaint for indemnity against Gunderson, and Union Pacific and Gunderson settled with plaintiff, each agreeing to pay half of plaintiff's settlement demand. After settling with plaintiff, Union Pacific and Gunderson proceeded to trial to determine whether Gunderson should also be liable for Union Pacific's half of the settlement. The court affirmed the district court's award to Union Pacific of half of its attorney's fees and costs incurred as of the settlement pursuant to the parties' Track Lease Agreement but denied Union Pacific's motion for additional attorney's fees arising out of the post-settlement indemnification proceedings. View "Rice v. Union Pacific RR Co." on Justia Law

G. Russell Damon filed with bar counsel a complaint regarding attorney Peter Farber's alleged fraudulent misrepresentation of certain facts in connection with a real estate purchase. After bar counsel filed a petition for discipline against Farber, Damon testified as a witness before a hearing committee of the board of bar overseers (board) on the matter. The hearing committee made findings consistent with the allegations in the petition for discipline, and the board adopted the committee's factual findings. Thereafter, the Supreme Court issued an order of public reprimand. Farbert subsequently filed a civil suit against Damon asserting, inter alia, claims of defamation and wrongful instigation of civil proceedings based on statements made in the complaint, in follow-up communications with bar counsel, and in the testimony Damon gave. Bar counsel filed this action for declaratory judgment to resolve controversy between the parties relating to the proper interpretation of S.J.C. Rule 4:01, 9. The Supreme Court held that, under section 9, a bar discipline complainant is entitled to absolute immunity from civil liability with respect to his complaint filed with bar counsel or the board and his sworn testimony given or communications made to bar counsel or the board or any hearing committee thereof. Remanded. View "Bar Counsel v. Farber" on Justia Law

Plaintiff filed a medical malpractice and wrongful death action against Defendants. Counsel for Defendants filed affidavits with the clerk of the Supreme Court seeking to disqualify Judge Frank Forchione from presiding over further proceedings in the pending case, alleging that Judge Forchione was prejudiced in favor of Plaintiff because he granted Plaintiff's motion to strike Defendants' jury demand and because the judge lacked judicial objectivity. The Supreme Court denied the affidavits of disqualification, holding (1) rulings that are adverse to a party in a pending case are not grounds for disqualification; and (2) the record did not demonstrate the judge was partial to Plaintiff or that he had a bias against Defendants or their counsel. View "In re Disqualification of Forchione" on Justia Law

Mother and Child were seriously injured in an automobile accident. Mother and her husband (Husband) hired Viscomi & Gersh (Viscomi) to represent Mother and Child in their claims for damages resulting from the accident. Matthew O'Neill was subsequently appointed to act as guardian ad litem (GAL) and conservator for Child. After Mother's case settled, Mother and Husband agreed with Morales Law Office (Morales) that Morales would represent Child. Morales then filed a motion to disqualify counsel. The district court denied the motion because it did not contain the consent of Viscomi and O'Neill. The Supreme Court affirmed, holding (1) when Mother and Husband consented to the appointment of a GAL and conservator to act in Child's best interests in the legal claims she had arising from the accident, they divested themselves of the right to determine who should represent Child in her personal injury claim; (2) Mont. Code Ann. 37-61-403 and Mont. Code Ann. 72-5-427 are not unconstitutional as applied in this case; and (3) section 37-61-403 does not conflict with the Montana Rules of Professional Conduct. View "In re Estate of C.K.O." on Justia Law

Paul Barber and his law firm, Barber & Borg, L.L.C. were the attorneys for Ellen Sam. Barber filed a lawsuit against numerous defendants for injuries Sam sustained when her car was struck from behind on Interstate 40. Barber also represented Sam in her capacity as the personal representative of the estates of her daughter and granddaughter, both of whom died from injuries they sustained in the collision. At some time during his representation of Sam, Barber learned that Sam had been drinking alcohol before the collision and that she had "parked at night with the lights off in a lane of traffic on [I-40], following which the car was struck by a truck." Barber also learned at some time during the litigation that Sam, who was a statutory beneficiary of her daughter's estate, took the position that the other statutory beneficiary, her ex-husband, Herman Spencer, was not entitled to share in any wrongful death proceeds because he had abandoned their daughter. Based on Sam's position, Barber approached Spencer in person with a settlement agreement, which Spencer ultimately signed, that reduced Spencer's entitlement to proceeds from the wrongful death litigation. Spencer later challenged the validity of the agreement. Barber filed a lawsuit against Spencer on Sam's behalf to enforce the agreement. Spencer counterclaimed against Sam and filed a third-party complaint against Barber for malpractice, fraud, collusion, and misrepresentation. The district court granted Barber summary judgment on the grounds that Barber did not owe a duty to Spencer as a statutory beneficiary because Spencer and Sam were adverse parties, and Barber represented Sam. The Supreme Court granted certiorari to consider the following two questions: (1) "[w]hether the duties a lawyer owes wrongful death statutory beneficiaries are governed by the Rules of Professional Conduct"; and (2) "[w]hether an adversarial relationship precludes only contract based malpractice claims and not independent tort claims." Upon review, the Supreme Court ruled that: (1) the Rules of Professional Conduct provide guidance in determining lawyers' obligations to their clients, and that the statutory beneficiary may sue the personal representative's attorney when the attorney harms the statutory beneficiary by failing to exercise reasonable skill and care during the attorney's representation of the personal representative; (2) the adversarial exception may preclude a malpractice action, whether it is in tort or in contract, and that in this case, the adversarial exception does not preclude Spencer's malpractice claim against Barber because there existed genuine issues of material fact regarding whether Barber failed to exercise reasonable skill and care in his representation of Sam as the personal representative, and if so, whether such failure harmed Spencer. View "Spencer v. Barber" on Justia Law

Appellant, the representative of a decedent's estate, hired attorneys David Mushlin and William Nefzger and their law firm to pursue a medical negligence claim against a hospital and several physicians. The trial court later disqualified Mushlin on the ground that Mushlin's prior representation of the hospital was sufficient to create a conflict of interest or at least the appearance of impropriety. The court also noted that Nefzger and the entire firm were conflicted because Mushlin could not effectively be screened from the case and there was a great likelihood of his having constant contact with the other attorneys who would be working on the case in his stead. Appellant subsequently filed a petition for a writ of prohibition, which the court of appeals denied. The Supreme Court affirmed, holding that Appellant failed to show she would suffer great injustice and irreparable injury from the trial court's order disqualifying her lawyer and his law firm from representing her. View "Robertson v. Circuit Court" on Justia Law

This case arose out alleged defamatory statements an attorney (Attorney) allegedly took in the course of investigating an underlying defamation action he was hired to defend. The legal issue was whether absolute immunity applied to Attorney's alleged defamatory statements, which were made during ex-parte, out-of-course questioning of a potential, nonparty witness. The court of appeal concluded that absolute immunity applied to Attorney's statements. The Supreme Court quashed the court of appeal's decision and held (1) Florida's absolute privilege was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney under the circumstances presented here; and (2) a qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to the subject of inquiry in the underlying lawsuit. View "DelMonico v. Traynor" on Justia Law

The United States District Court for the Southern District of Georgia certified a question to the Georgia Supreme Court: "Is it proper for a jury to consider a defendant’s worldly circumstances when deciding the amount of damages that should be imposed under OCGA 51-12-6?" The question arose from a case in which the issue on appeal was whether admission of "worldly circumstances" evidence in a tort action where the only injury to plaintiff was to his peace, happiness or feelings. Steven Caviness was injured in a train accident and retained attorney James Holland, II to pursue an action against the train company. The attorney filed a complaint; the company raised the affirmative defense of the expiration of the statute of limitation. The client was not told of the mistake until twenty days after his attorney learned of the missed statute of limitation. Caviness sued his attorney, and the attorney was granted summary judgment on the legal malpractice claim. A breach of fiduciary duty claim was allowed to proceed, but the district court found that because the only remaining injury to Caviness's peace, happiness or feelings, OCGA 51-12-6 applied. Caviness introduced evidence of Holland's worldly circumstances, including the law firm's income, the attorney's salary, the attorney's real estate holdings and personal property. A jury awarded Caviness $700,000 in damages. Holland's motion for a new trial was denied with leave to renew pending the Supreme Court's answer to the certified question. The Supreme Court responded that OCGA 51-12-6 precludes admission of worldly circumstances when the only injury is to a plaintiff's peace, happiness or feelings. View "Holland v. Caviness" on Justia Law