Justia Legal Ethics Opinion Summaries

The issue this case presented for the Colorado Supreme Court’s review centered on the contention of ineffective assistance of counsel in the context of a dependency and neglect proceeding. In 2016, petitioner A.R.’s (the “child’s”) paternal step-grandmother took him to the emergency room to receive treatment for scabies. A physician who treated the then-six-month-old child determined that the degree of scabies on the child evinced a case of neglect, and, later that night, another doctor confirmed that the child also had a skull fracture. The Department of Human Services subsequently initiated this dependency and neglect proceeding, and the juvenile court granted the Department continued custody of the child. Later, the juvenile court held an adjudicatory hearing with respect to both parents. When mother did not appear, her counsel told the court that he had made arrangements with mother to attend the hearing, but did not know why she did not appear. Apparently in an effort to move the case forward, and after speaking with counsel for both mother and the child’s father (who also did not appear), the Department asked the court for leave to amend the Department’s dependency and neglect petition to include an allegation that the child was dependent or neglected through no fault of the child’s parents and to allow the Department to rest on the Report of Investigation filed with the petition. The child’s guardian ad litem (“GAL”) agreed with this procedure, stating that it was in the child’s best interests to “move forward,” and the court therefore entered a no-fault adjudication and approved the proposed treatment plan. Mother did not appeal this adjudication. The mother challenged the ultimate termination of her rights to A.R. The Supreme Court was asked to decide: (1) whether, in a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing; (2) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance; and (3) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development. The Supreme Court held an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing only when the party claiming ineffective assistance did not have a full and fair opportunity to assert such a claim immediately after his or her child was adjudicated dependent and neglected, and outlined the standard for determining ineffective performance in a dependency and neglect context. Applying these determinations to the facts and claims presented, the Court affirmed the judgment below (on different grounds), and remanded for further proceedings. View "Colorado in Interest of A.R." on Justia Law

Naziyr Yishmael, who was not an attorney, advised clients that they could "homestead" in apparently abandoned properties and, after a period of time, acquire title through adverse possession. After some of his clients were arrested for taking up residence in other people's houses, he was charged with and convicted of misdemeanor unlawful practice of law. On appeal, he contended: (1) the jury was improperly instructed that the unlawful practice of law was a strict liability offense; (2) the trial court's use of GR 24 to define the practice of law violated separation of powers was an inappropriate comment on the evidence; (3) the Statute was unconstitutionally vague; and (4) the evidence presented was insufficient to sustain his conviction. Finding no reversible error, the Washington Supreme Court affirmed Yishmael’s conviction. View "Washington v. Yishmael" on Justia Law

The Ninth Circuit affirmed in part and reversed in part the district court's award of attorney's fees after settlement in a 42 U.S.C. 1983 action. The district court awarded just 10 percent of the fees plaintiff claimed.The panel held that, given the size of the 90 percent cut in attorney's fees, the district court's explanation was inadequate. The panel reaffirmed its prior decisions holding that a significant reduction requires a more thorough explanation, and concluded that the district court did not adequately justify the dramatic cut that it imposed here. Therefore, the panel remanded for a recalculation of the number of hours reasonably attributable to counsel.The panel also held that the district court erred by denying fees for work performed by two former attorneys on the basis that their law firm lacked standing to seek fees for work they performed at a different firm. Finally, the district court did not abuse its discretion in reducing the hours and rates of the other attorneys that worked on the case. View "Vargas v. Howell" on Justia Law

Primera Beef, LLC appealed a district court’s grant of summary judgment in favor of Allan Ward. Primera Beef alleged Ward breached the confidentiality provision of a settlement agreement between him and Primera Beef when Ward’s attorney disclosed the terms of the agreement to a prosecutor in a related criminal action. Ward moved for summary judgment, arguing that he was not liable for his attorney’s actions because his attorney was not acting within the scope of his authority when he disclosed the terms. The district court agreed. The Idaho Supreme Court concurred and affirmed the district court. View "Primera Beef v. Ward" on Justia Law

In consolidated actions, the common issue presented for the Louisiana Supreme Court’s review centered on whether a writ of mandamus should issue to the clerk of an appellate court for the purpose of directing the clerk to comply with certain rules for the random assignment of panels and cases at that court. In a three-page per curiam, the First Circuit explained its allotment procedures were changed in 2019 after the 2018 amendment to La. R.S. 13:319. The First Circuit stated it adopted rules requiring a procedure for random allotment by the Clerk’s office of both appeals (Internal Rule 2.3(d)(l)(c)) and writ applications (Internal Rules 3.9(a)),4 with consideration for recusals and emergencies. In a supplemental per curiam, the First Circuit discussed composition of judicial panels, each regular panel comprising of one member randomly chosen through mechanical means from the four members of each of the Court's three election districts. The random composition of the initial three-judge panels was adopted pursuant to a five-year plan of rotation of members among the panels. To further ensure random composition of the panels, panel members of particular panels did not sit as an intact panel in the following year. The four randomly drawn regular panels also sat on writ duty throughout the Court's six appeal cycles. Petitioner Texas Brine’s petition alleged the First Circuit’s composition of judicial panels “dramatically limits the number of unique panels that can hear writs, appeals, and contested motions before the First Circuit from 220 unique combinations to 64 unique combinations - a reduction of approximately 70.9%.” It concluded this policy was an “affront to the requirement of randomness.” The Solomon plaintiffs’ mandamus petition was premised on the First Circuit’s practice, used between 2006-2018, of assigning subsequent appeals or applications for writs to a panel which included a judge who sat on the original panel and may have taken the lead or authored the first opinion/ruling in the case. The Supreme Court determined the First Circuit’s assignment system was reasonably designed “to select judges for panels in a random fashion which does not permit intentional manipulation by either the judges or the litigants.” The Court therefore denied Texas Brine’s mandamus petition, and dismissed the Solomon plaintiffs’ application as moot. View "Texas Brine Co., LLC v. Naquin" on Justia Law

The State charged David Nickels with first degree murder in 2010 in Grant County, Washington. Though represented by counsel. Nickels acquired additional legal assistance from a local criminal defense attorney, Garth Dano. The parties agreed that Dano's involvement in Nickels' defense created a conflict of interest requiring Dano's personal disqualification, but they disputed the scope of his involvement. The record established that Dano entered a notice of association of counsel and appeared on the record to receive a jury question and to receive the jury's verdict. The record further establishes that after Nickels' conviction in 2012, Dano conducted interviews with jurors and potential exonerating witnesses. Via his counsel's uncontested affidavit, Nickels claimed Dano received privileged work product through his participation in crafting the defense's strategy and theory of the case, and his meeting personally with Nickels. In 2014, while Nickels' appeal was pending, Dano was elected Grant County prosecutor. Subsequently, in 2017, the Court of Appeals reversed Nickels' conviction. On remand, the Grant County Prosecuting Attorney's Office immediately sought to screen now-Prosecutor Dano. Nickels moved to disqualify the entire office, arguing that under “Stenger,” Dano's prior involvement in his defense necessitated the blanket recusal. The trial court denied Nickels' motion; but the Court of Appeals reversed and, applying Stenger, ordered the disqualification of the entire Grant County Prosecuting Attorney's Office. The Washington Supreme Court determined Stenger’s narrowly crafted rule applied only to Washington's 39 elected county prosecutors who, despite adequate screening, retained broad discretionary and administrative powers over their offices and employees. Accordingly, the Supreme Court held that Stenger remained good law, and affirmed the Court of Appeals' decision disqualifying the Grant County Prosecuting Attorney's Office. View "Washington v. Nickels" on Justia Law

In this judicial disciplinary proceeding, the Supreme Court adopted a Judicial Conduct Panel's findings of fact, agreed that those facts demonstrated that Honorable Kenneth W. Gorski, a part-time commissioner for the Wood County circuit court, committed judicial misconduct, and publicly reprimanded Commissioner Gorski for that misconduct.After adopting the panel's findings of fact the Supreme Court agreed with the panel's conclusion that those factual findings demonstrated that Commissioner Gorski willfully violated specified provisions of the Code of Judicial Conduct, thereby committing judicial misconduct. The Court then held that a sanction was necessary to impress upon Commissioner Gorski the damage that such conduct does to the judicial system and the rule of law and ordered that Commissioner Gorski be publicly reprimanded for judicial misconduct. View "Wisconsin Judicial Commission v. Gorski" on Justia Law

Caviedes-Zuniga pleaded guilty to distributing 140 grams of heroin. 21 U.S.C. 841(a)(1), (b)(1)(B). He was sentenced to 111 months’ imprisonment, 77 months below the 188 -235 months recommended by the Sentencing Guidelines. After filing a notice of appeal, he told his lawyer that he wants a trial. He also told his attorney that he does not wish to contest his sentence if the conviction remains in place. Counsel asked to withdraw, representing that he deems the appeal frivolous; he argued that a successful appeal could upset the sentence and harm the defendant. The Seventh Circuit agreed and dismissed the appeal as frivolous, allowing counsel to withdraw. A judge might well reconsider the sentencing discount for acceptance of responsibility on learning that on appeal Caviedes-Zuniga tried to have the plea vacated, even if the attempt failed. View "United States v. Caviedes-Zuniga" on Justia Law

This dispute arose between two attorneys representing the plaintiff class in an approved settlement. After the trial court made an award of attorney fees and divided the fees in accordance with the alleged fee division agreement, appellant challenged the enforceability of that agreement and the division of the attorney fee award between himself and respondent.The Court of Appeal reversed and held that the trial court abused its discretion by enforcing the fee division agreement, when the undisputed facts showed a clear violation of former Rules of Profession Conduct 3-410, which rendered the agreement unenforceable. The intent of the rule was to require the attorney to disclose the lack of professional liability insurance to the client, at the time the client retained the attorney, so the client could consider that information in making the decision to retain or not retain the attorney.The court remanded for the trail court to determine whether principles of equity entitled the law firm to some measure of compensation. In this case, the trial court did not reach the issues of whether respondent should recover compensation for his attorney services on a quantum meruit basis, despite invalidation of the fee division agreement for violation of former rule 3-410 and, if so, how much he should recover. View "Hance v. Super Store Industries" on Justia Law

Sonya C. Edwards and Edwards Law, LLC (collectively, "Edwards"), petitioned the Alabama Supreme Court for a writ of mandamus to direct a trial court to enter a summary judgment in their favor in an action filed against them by Ivan Gray. Sonya previously represented Gray in proceedings in federal court. In 2015, after mediation and a settlement, those proceedings concluded with the entry of a final judgment. Thereafter, Gray sought to set aside the settlement, and Sonya terminated her representation of Gray. In 2017, Gray sued Edwards alleging Edwards had entered into a contract with Gray in June 2014 in which Sonya agreed to represent Gray in the federal proceedings in exchange for a contingency fee of 50%. Gray alleged that he paid a total retainer fee in the amount of $14,380.85 to cover expenses. According to Gray's complaint, when his federal case concluded, Edwards disclosed that the actual expenses amounted to $4,516.77, therefore, he felt he was entitled to a refund of $9,864.08. When the refund was not forthcoming, Gray alleged Edward converted his retainer and breached the contract between the two. The Supreme Court determined the "act or omission or failure giving rise to the claim" occurred on September 16, 2015, and that was the operative date from which to measure the applicable two-year limitations period. Gray did not file his action until October 27, 2017, which was beyond the two-year limitations period. Accordingly, Edwards has demonstrated a clear legal right to have a summary-judgment entered in her favor. View "Ex parte Sonya C. Edwards and Edwards Law, LLC." on Justia Law