Justia Legal Ethics Opinion Summaries

After an employee brought a wage and hour class action against her employer and prior to certification, the parties settled. The employer paid a sum to the employee and she dismissed the class claims without prejudice, with court approval. Then the employer brought a malicious prosecution action against the employee and her counsel. The employee and her counsel each moved to strike the action under the anti-SLAPP law, which the trial court denied on the basis that the employer established a prima facie showing of prevailing on its malicious prosecution cause of action.The Court of Appeal concluded that, because the prior action resolved by settlement, the employer is unable to establish that the action terminated in its favor as a matter of law. The court explained that the class claims are not severable from the individual claims for the purposes of the favorable termination analysis. Furthermore, the entire action terminated by settlement – a termination which was not favorable to the employer as a matter of law. Accordingly, the court reversed and remanded for determination of one unadjudicated anti-SLAPP issue, and whether the employee and her counsel are entitled to an award of attorney fees. View "Citizens of Humanity, LLC v. Ramirez" on Justia Law

Plaintiffs, a start‐up company and its founder (Marlowe), sued the company’s former chief legal officer, Fisher, to recover losses from an arbitration award that held them liable for years of unpaid wages owed to Fisher himself. The award comprised unpaid wages and statutory penalties totaling $864,976 and an additional $366,460 because Fisher did not receive written notice of his contract nonrenewal. Plaintiffs alleged that Fisher advised them to enter into what they now say was an illegal agreement to defer Fisher’s compensation until the company was able to secure more funding.The Seventh Circuit affirmed the dismissal of the suit. Even if Marlowe was Fisher’s client regarding her own compensation agreement and a decision not to purchase directors and officers insurance, the plaintiffs failed to plead any plausible malpractice claims arising from those matters. Plaintiffs did not allege that they would have opted against using the compensation agreements had Fisher fully advised them. The company violated the Illinois Wage Act by failing to pay Fisher as agreed. The agreement did not aggravate or add to those violations; it made sense as an interim measure to forestall litigation by acknowledging the obligation and committing the company to one way to satisfy it. View "UFT Commercial Finance, LLC v. Fisher" on Justia Law

Sargent began working for the University in 1991 as an environmental health-and-safety technician. Sargent was the campus’s licensed asbestos consultant. Sargent sued, presenting abundant evidence about retaliation after he raised concerns about environmental hazards. A jury found in his favor on claims alleging unlawful retaliation and on a claim under the Labor Code Private Attorneys General Act (Labor Code 2698, PAGA), which was premised almost entirely on violations of the California Occupational Safety and Health Act (Labor Code 6300, CalOSHA). He was awarded more than $2.9 million in PAGA penalties and more than $7.8 million in attorney fees.The court of appeal affirmed the award of attorney fees but reversed the award of PAGA penalties. Education Code 66606.2 does not bar PAGA claims against the California State University (CSU) system; CSU is not categorically immune from PAGA penalties because it is a public entity. Viable PAGA claims can be asserted against CSU only when the statutes upon which the claims are premised themselves provide for penalties. Here, Sargent brought some viable PAGA claims but ultimately failed to establish CSU’s liability for them because the jury found that he was not personally affected by the underlying statutory violations. View "Sargent v. Board of Trustees of the California State University" on Justia Law

The Fourth Circuit vacated the district court's order denying plaintiff's motion seeking to recover reasonable attorney's fees, costs, and expenses from Montgomery County, Maryland. This case arose from the County's failure to reasonably accommodate plaintiff's disability. The district court concluded that plaintiff is not eligible for such an award because she was not a prevailing party under 29 U.S.C. 794a(b).The court found this case similar to Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970), and concluded that plaintiff is even more of a prevailing party than the Parham plaintiff. The court explained that plaintiff is not a prevailing party because she catalyzed the County to change its behavior by filing a lawsuit; rather, she is a prevailing party because she proved her claim to a jury before the County capitulated by transferring her to another call center. Furthermore, the transfer was key to the district court's subsequent finding that the County reasonably accommodated plaintiff and thus the district court's ultimate denial of plaintiff's request for equitable relief. Accordingly, the court remanded for further proceedings. View "Reyazuddin v. Montgomery County, Maryland" on Justia Law

An employee sued her former employer for wrongful termination. The employee died, but her attorney continued to litigate, negotiate, and mediate the case for another year before informing the court or opposing counsel of her death. The superior court concluded the attorney had committed serious ethical violations related to this delay and disqualified him from the case. Post-disqualification, the attorney filed a motion to substitute the personal representative of the employee’s estate as plaintiff. The superior court issued an order dismissing the case on several grounds. The Alaska Supreme Court found the court did not abuse its discretion by disqualifying the attorney and denying the motion for substitution he submitted. The superior court was correct to dismiss the case, as only one party remained, but the Supreme Court concluded granting summary judgment in favor of the former employer and supervisor was error. "The estate is not entitled to appeal the court’s refusal to enforce a draft settlement agreement signed by the employee before her death and does not have standing to appeal the sanctions imposed against the attorney. But because the estate was not allowed to participate as a party, we conclude that awarding affirmative relief against it was error." View "Bunton v. Alaska Airlines, Inc." on Justia Law

Carrie Thompson-Widmer appealed the dismissal of her claims of defamation and tortious interference with a business relationship against Kimberly Larson, Wells County, Eddy County, and Foster County. In January 2017, Larson filed a formal complaint with the State Board of Social Work Examiners against Thompson-Widmer on the basis of Thompson-Widmer’s actions in two child protection services cases. Larson alleged Thompson-Widmer misrepresented information about a child’s home environment in one case, and altered a report about methamphetamine in an infant’s meconium in the other case. Larson also met with a state’s attorney about Thompson-Widmer’s actions. The attorney referred the matter to a special prosecutor for consideration of potential criminal charges. Because the complaint to the State Board was filed while Thompson-Widmer was a Tri-County employee, Larson placed the complaint and the supporting documents in Thompson-Widmer’s employee personnel file. After the criminal investigation into Thompson-Widmer’s action was suspended, she became employed with Catholic Charities in April 2017. Tri-County worked with Catholic Charities on adoption placement cases. Larson’s staff informed her they did not feel comfortable working with Thompson- Widmer. Larson notified Catholic Charities that Tri-County would rather work with someone other than Thompson-Widmer. Catholic Charities submitted an open records request for Thompson-Widmer’s personnel file, and Larson fulfilled the request on Tri-County’s behalf. In May 2017, after receiving the personnel file, which included Larson’s complaint against Thompson-Widmer, Thompson-Widmer was terminated because she was not forthcoming about her issues while employed by Tri-County. After review, the North Dakota Supreme Court affirmed, concluding Larson’s communications were privileged and therefore not subject to liability for defamation. View "Thompson-Widmer v. Larson, et al." on Justia Law

Rembert, a nurse, routinely worked more than 40 hours per week for A Plus but did not receive overtime. Rembert filed a purported class action under the Fair Labor Standards Act (FLSA). The Department of Labor investigated. The court certified a class and ordered A-Plus to provide a list of persons potentially fitting within the class. The deadline passed. A magistrate scheduled a phone conference; defense counsel failed to appear. A Plus provided responsive information about five weeks after the deadline. The parties began discovery, which was notable for defense counsel’s repeated failure to comply. Rembert’s counsel finally filed a motion to compel. The magistrate granted the motion and ordered A Plus to pay “reasonable attorneys’ fees and costs.” Defense counsel failed to respond. Rembert filed another motion. As a result of the DOL investigation, some class members received full payment of the amounts owed to them. The parties ultimately agreed to the entry of judgment in favor of Rembert and the remaining class members, $18,961.Rembert moved for an award of fees and costs under the FLSA, 29 U.S.C. 216(b). Her lawyers requested hourly rates of $350 and $300, respectively, and submitted detailed records for 21.2 hours of work for the motion to compel and 98.7 hours on the remainder of the case. The court approved the rates but reduced counsel’s total compensable hours to 46.2 and cut the fee award an additional $1,660. The Sixth Circuit reversed. The plaintiffs obtained 100% of the recovery due to them. The court did not explain which hours it rejected and apparently did not consider the impact of delays caused by defense counsel. The court remanded with instructions to grant the petition for fees and costs in the amount of $38,765.00. View "Rembert v. A Plus Home Health Care Agency, LLC" on Justia Law

In this case, the real parties in interest and plaintiffs were former store managers for petitioner-defendant Big Lots Inc., who claimed they spent less than 50 percent of their worktime on managerial tasks and, as a result, should have been paid overtime compensation for hours worked in excess of a standard 40-hour week. Big Lots was an Ohio corporation. When this lawsuit was first filed, it retained a California law firm, Haight Brown & Bonesteel LLP (Haight Brown), as counsel of record. Big Lots later sought the superior court’s permission for attorneys from an Ohio law firm, Vorys, Sater, Seymour & Pease LLP (Vorys), to also represent it. The trial judge ultimately granted applications filed by three different attorneys in the Vorys firm. But after later being advised that these Ohio attorneys were attempting to represent various current and former Big Lots managers in depositions noticed by plaintiffs, the court revoked pro hac vice authorization for all three lawyers. Big Lots petitioned for a writ of mandamus to overturn that order. The Court of Appeal agreed with the trial judge that there was a between an attorney’s representation of the defendant corporation in a lawsuit and his or her representation of current or former employee witnesses. "Pro hac vice admission as to one client does not necessarily allow a lawyer to represent a different client even if substantive law does not otherwise prohibit it." The Court nonetheless concluded the total revocation of pro hac vice status for the Vorys attorneys was not supported by the record then before the trial court. The petition to vacated the revocation order was granted, but the matter was returned to the trial court for additional hearings/orders deemed necessary. View "Big Lots Stores v. Super. Ct." on Justia Law

Fox Lake patrol officer Zander was charged with misconduct arising from multiple job-related incidents. The chief recommended termination. Zander's union, FOP, assigned Attorney Carlson, an FOP employee. Zander had no input into the choice of an attorney, had no retainer agreement with Carlson, and was not charged for Carlson’s services. Under the Illinois Municipal Code (65 ILCS 5/1-1-1), police officers who face removal or discharge are entitled to a hearing before the local board of fire and police commissioners unless a collective bargaining agreement (CBA) provides for arbitration. The CBA between Fox Lake and FOP gave officers the option of pursuing either avenue. On Carlson’s advice, Zander chose arbitration. The arbitrator upheld the termination. Zander sued, alleging legal malpractice and that FOP has no right to employ attorneys to furnish legal services under its direction to FOP members, and cannot control what attorneys assigned to help FOP members may do and “should be vicariously liable.”The circuit court dismissed, citing the U.S. Supreme Court’s "Atkinson" holding, which immunizes union members and officers against personal liability for actions taken while acting as a union representative in the context of the collective bargaining process. The court noted the parallels between federal labor law and the Illinois Public Labor Relations Act. The Illinois Supreme Court agreed. But for the collective bargaining agreement. FOP would have owed Zander no duty. Zander’s claim against the union fell within the exclusive jurisdiction of the Illinois Labor Relations Board. View "Zander v. Carlson" on Justia Law

Alemarah sued her former employer, GM, in both state and federal court, claiming employment discrimination based upon identical factual allegations. The state suit asserted state claims, the federal suit, federal claims. The state court dismissed that case after a case evaluation ($400,000); the federal district court granted GM summary judgment. Alemarah challenged the court’s grant of summary judgment, its denial of her motion to recuse the judge, and an award ($4,715) of costs.The Sixth Circuit affirmed. The court properly granted summary judgment. Under Michigan law, the state court’s order dismissing her claims after acceptance of the case evaluation was a judgment on the merits, Alemarah and GM were parties in both case, and the matter in the second case could have been resolved in the first, so res judicata bars every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised. The court acknowledged that a reasonable observer could conclude that the district judge’s statement in a letter to Alemarah’s counsel expressed anger and another of the judge’s actions could be seen as punitive but those actions were not “so extreme as to display clear inability to render fair judgment.” GM submitted as costs the amount it paid for deposition transcripts that it attached to its summary judgment motion; the costs were allowable. View "Alemarah v. General Motors, LLC" on Justia Law