Justia Legal Ethics Opinion Summaries

The Colorado Commission on Judicial Discipline (“the Commission”) recommended approval of a Stipulation for Public Censure and Suspension against Judge Lance P. Timbreza. In June 2019, Judge Timbreza was arrested and charged with Driving Under the Influence and Careless Driving. As he drove home from a party, Judge Timbreza crashed his vehicle into roadside trees and bushes while avoiding a collision with another vehicle. Judge Timbreza contacted the Commission by phone to report his arrest and the charges against him. Judge Timbreza pled guilty to Driving While Ability Impaired and was sentenced to one year of probation, alcohol monitoring, a $200 fine, useful public service, and two days of suspended jail time. By driving while his ability was impaired by alcohol, the Commission determined Judge Timbreza failed to maintain the high standards of judicial conduct required of a judge. The Commission found Judge Timbreza’s conduct violated Canon Rules 1.1 and 1.2 of the Colorado Code of Judicial Conduct. Consistent with the Stipulation, the Commission recommends the Colorado Supreme Court issue a public censure and a twenty-eight-day suspension of Judge Timbreza's judicial duties without pay. The Supreme Court adopted the Commission’s recommendation. View "In the Matter of: Judge Lance P. Timbreza" on Justia Law

Plaintiff challenged the district court's attorneys' fee award, arguing that the entire award was arbitrary because the district court did not adequately explain its decision to cut the number of hours expended by class counsel by 25%. The underlying class action was brought by plaintiff on behalf of a nationwide class of consumers, alleging that defendants marketed James Bond DVD and Blu-ray sets as containing all the Bonds films, when in fact they failed to include two movies. The parties settled and the settlement agreement included defendants' agreement to pay attorneys' fees and cost.The Ninth Circuit affirmed the attorneys' fee award, holding that the district court's order, when read in its entirety, explained the lodestar calculation it conducted and its application of the percentage-of-recovery analysis as a cross-check for reasonableness. Therefore, the panel found that the district court adequately explained its reasoning and did not abuse its discretion. View "Johnson v. Metro-Goldwyn-Mayer Studios, Inc." on Justia Law

Sepling, represented by SC, pled guilty to importing GBL, a controlled substance analogue, 21 U.S.C. 952; Sepling’s sentence would be calculated without consideration of the Guidelines career offender section. Sepling was released on bond pending sentencing and became involved in a conspiracy to import methylone, another Schedule I controlled substance. He was charged under 21 U.S.C. 963. A search uncovered three kilograms of methylone. Subsequent investigation revealed that the conspiracy involved approximately 10 kilograms. A Public Defender (APD) represented Sepling on the new charges. The prosecution agreed to withdraw the new charge; in exchange, Sepling’s involvement in the conspiracy would be factored into his GBL sentence as relevant conduct. The APD ceased representing Sepling. Sepling’s unmodified Guideline range for the GBL was 27-33 months. The methylone relevant conduct dramatically increased his base offense level. The PSR analogized methylone to MDMA, commonly called “ecstasy,” and held him responsible for 10 kilograms, resulting in responsibility equivalent to that for conspiring to distribute five and a half tons of marijuana, for a sentencing range of 188-235 months. SC did not object to that calculation, nor did he file a sentencing memorandum. Rather than researching the pharmacological effect of methylone, SC relied upon Sepling to explain the effects of methylone. SC, the government, and the court all confessed that they did not possess any substantive knowledge of methylone The Third Circuit vacated the 102-month sentence. Sepling was prejudiced by his counsel’s ineffectiveness. View "United States v. Sepling" on Justia Law

The website, www.legalmatch.com, connects individuals to lawyers, based on an intake form and client specifications. LegalMatch represents that it “does not screen or vouch for any of its users” and does “not imply an endorsement of any subscribing attorney or service …. LegalMatch does not screen individual cases or otherwise channel potential clients to select attorneys.” Only subscribing lawyers associated with the location and category selected by the potential client can affirmatively reach out to the individual. Lawyers and clients negotiate the parameters of their attorney-client relationship. The number of lawyers in a geographic location and category of legal expertise is limited by an algorithm that maintains LegalMatch’s profitability by balancing the number of clients and lawyers available. Potential clients use the site for free. LegalMatch receives no fee for the formation of an attorney-client relationship. When LegalMatch sued attorney Jackson to recover unpaid subscription fees, Jackson argued that LegalMatch was an uncertified lawyer referral service, in violation of Business and Professions Code section 6155. The trial court rejected Jackson’s argument. The court of appeal reversed. The act of referring is complete when LegalMatch routes a potential client to attorneys who match the geographic location and area of practice—regardless of whether LegalMatch exercises legal judgment on an individual’s issue before communicating that information to lawyers on its panel. View "Jackson v. LegalMatch.com" on Justia Law

A plaintiff who obtains a preliminary injunction under the All Writs Act does not qualify as a prevailing party for fee-shifting purposes by virtue of that injunction, where the order granting injunctive relief makes no mention of the merits of the plaintiff's claims.In this case, plaintiffs filed suit against the State of Hawaii and other defendants, alleging that defendants became state actors by conducting elections and that the State's involvement in the self-governance process violated the Fourteenth and Fifteenth Amendments and the Voting Rights Act of 1965 because of the race-based restrictions on eligibility. Although the district court denied the injunction and this court denied a motion for an injunction pending appeal, the Supreme Court subsequently granted plaintiffs' application for an injunction under the All Writs Act.The Ninth Circuit affirmed the district court's denial of attorney fees under 42 U.S.C. 1988, holding that there was no indication that the Supreme Court's injunction order addressed the merits. Furthermore, plaintiffs sought and received a voluntary dismissal without prejudice in the district court, which was the opposite of an adjudication on the merits. Therefore, plaintiffs were not prevailing parties entitled to attorney fees. View "Makekau v. Hawaii" on Justia Law

While shopping at a Wal-Mart store, Waldon believes she slipped on a plastic hanger and fell causing her injuries. Under Indiana premises-liability law, a defendant must have actual or constructive knowledge of a condition on the premises that involves an unreasonable risk of harm to an invitee. Wal-Mart offered the testimony of employees that they had not been aware of a dangerous condition. After discovery, the district court concluded there was no evidence Wal-Mart knew of such a condition and granted it summary judgment. The Seventh Circuit affirmed and, because Waldons’ counsel had deleted date stamps on photographs submitted to the court, ordered counsel to show cause why he should not be sanctioned under Rule 46 of the Federal Rules of Appellate Procedure for misrepresenting the record to the court. View "Waldon v. Wal-Mart Stores, Inc." on Justia Law

Fireman’s Fund issued insurance covering property damage at Stephens's warehouse. Three days after the policy became effective, Stephens discovered that burglars stripped the property of all electrical and conductive material. Stephens filed an insurance coverage suit, retaining attorney O’Reilly who had a first lien to assure payment of fees. The trial court entered judgment NOV, awarding Stephens nothing. O’Reilly withdrew from the case and was the subject of an involuntary bankruptcy petition. Following a remand, Stephens and Fund settled for $5.8 million. The bankruptcy estate claimed 40% of the settlement. Danko, the largest creditor, bought the claim and obtained the Stephens's files from the trustee. Based on O’Reilly’s failure to sign the retainer agreement, Stephens sent Danko a letter voiding the retainer agreement and sought declaratory relief. The court ordered Danko to return Stephens’s client file and granted a special motion to strike (anti-SLAPP) a claim for breach of trust against Fund based on the theory that Fund breached a fiduciary duty to O’Reilly and/or the bankruptcy estate by failing to advise the bankruptcy court of the Stephens-Fund settlement and “secretly disbursing” the proceeds and a claim for interference with prospective business advantage against Fund based on the same acts. The court of appeal affirmed the trial court’s denial of Stephens’s motion to disqualify the Danko from representing the corporate entity to which Danko assigned the claim; a protective discovery order regarding Stephens’s client file; and the anti-SLAPP order. View "O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC" on Justia Law

In 2010, the Foundations and their insurance broker, Gallagher, discussed the renewal of the Foundations’ $25 million directors and officers (D&O) insurance coverage. The Foundations wanted to obtain the same coverage with a reduced premium. Gallagher offered renewal of the existing Chubb policy or the purchase of a $25 million Chartis policy, stating that the Chartis policy provided the same coverage with a premium that was $3400 lower. Unbeknownst to the Foundations, the Chartis policy contained a broad exclusion of claims related to securities transactions; the Chubb policy contained a narrower exclusion. In 2007, the Foundations sold their Tribune stock for $2 billion during a leveraged buyout. A year later, the Tribune filed for bankruptcy. The Foundations were named in suits filed by aggrieved shareholders, alleging fraud. The Foundations tendered the litigation to Chartis, which denied coverage. The Foundations, asserting that Chubb would have defended and indemnified them, sued Gallagher for breach of contract and professional negligence. Gallagher’s defenses asserted that the Foundations’ conduct was fraudulent and uninsurable and that the Foundations knew of “an ongoing, progressive loss” before changing insurers. Gallagher subpoenaed the Foundations and their attorneys, seeking communications related to the Tribune bankruptcy and the litigation. The Foundations asserted attorney-client privilege. The circuit court applied an exception, finding that Gallagher had a “common interest” with the Foundations because it was “standing in the insurer’s shoes for the purposes of this malpractice issue and may bear the ultimate burden of payment of the underlying claims and defense costs.”The Illinois Supreme Court reversed. The common-interest exception to the attorney-client privilege does not extend to these circumstances, where there is no insured-insurer relationship between the parties and the party claiming the privilege is bringing suit based on the defendant’s negligence in failing to procure appropriate insurance as a broker. View "Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc." on Justia Law

James Broten appealed the dismissal of his attorney malpractice claim. Broten was appointed to serve as the personal representative of his father’s estate. Broten was sued by his sisters who claimed Broten had breached his fiduciary duties as personal representative by transferring land held in the trust to himself. In 2011, Broten retained attorney Ralph Carter to defend him against his sisters’ claims. During Carter’s representation, Broten showed Carter approximately sixty boxes of records Broten believed documented payments to his parents and provided a defense to his sisters’ claims. Broten repeatedly inquired with Carter about his review of the records. The records were not disclosed to the opposing party during discovery but disclosed after Carter was replaced as Broten’s counsel in March of 2013. In August 2013, the district court entered an order finding Broten had breached his fiduciary duties as personal representative of his father’s estate, ultimately requiring Broten to pay damages to his sisters in an amount of $1,300,054. Broten alleged Carter’s failure to review and disclose the documents prevented all of the records from being introduced as evidence and resulted in the liability to his sisters. Carter moved for summary judgment, arguing the applicable two year statute of limitations barred Broten’s claim. The district court granted summary judgment in favor of Carter and awarded to Carter the recovery of costs and fees, including the costs expended for expert witnesses who were unnecessary for resolution of the statute of limitations issue. Broten argued the district court erred in granting summary judgment after finding his claim was barred by the applicable statute of limitations. He also challenged the inclusion of expert witness fees within the expenses awarded by the district court for experts who were unnecessary for resolution of the statute of limitations issue. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Broten v. Carter, et al." on Justia Law

The Court of Appeal held that Union was eligible for attorney fees under the California Public Records Act (CPRA) for work on the CPRA cross-petition and for attorney fees under Code of Civil Procedure section 1021.5 for its work opposing the petition for writ of mandate; the trial court did not abuse its discretion in finding that Union met the requirements of Code of Civil Procedure section 1021.5 for attorney fees; Union was the prevailing party and its action resulted in the enforcement of an important right affecting the public interest, conferring a significant benefit on the general public; DWP and Intervener Utilities were not exempt from attorney fees on the ground they were the equivalent of an individual who seeks a determination of only his or her own private rights and has done nothing to adversely affect the public interest; and DWP and Intervener Utilities sought far more than a simple determination of the privacy rights of a few customers.The court also held that the trial court did not abuse its discretion in finding that attorney fees were warranted for Union's initial "collusion" claims; the trial court abused its discretion in denying fees for Union's work preparing the reply briefs; the court need not and did not reach the issues in Union's "protective" cross-appeal; DWP and Intervener Utilities had standing; and the court declined Union's suggestion to find reverse-CPRA actions impermissible. Accordingly, the court affirmed with modifications. View "City of Los Angeles v. Metropolitan Water District of Southern California" on Justia Law