Justia Legal Ethics Opinion Summaries

The Michigan Judicial Tenure Commission filed a formal complaint against 53rd District Court Judge Theresa Brennan alleging 17 counts of judicial misconduct related to both her professional conduct and to her conduct during her divorce proceedings. After a hearing, the master concluded by a preponderance of the evidence that respondent had committed misconduct in office with respect to all but one count of the second amended complaint. In particular, the master found that respondent had: (1) failed to disclose when she presided over Michigan v. Kowalski (No. 08-17643-FC) that she was involved in a romantic relationship with the principal witness, and did not disqualify herself from the case on that basis; (2) failed to immediately disqualify herself from hearing her own divorce case and destroyed evidence even though she knew that her then-estranged husband had filed an ex parte motion to preserve evidence; (3) failed to disclose her relationship with attorney Shari Pollesch or to disqualify herself from hearing cases in which Pollesch or her firm served as counsel for a party; (4) made false statements under oath when deposed in her divorce case; (5) made false statements during certain cases over which she presided regarding her relationships with Furlong and Pollesch; (6) made false statements under oath to the commission; (7) verbally abused attorneys, litigants, witnesses, and employees; (8) directed employees to perform personal tasks for her during work hours; (9) directed employees to perform work for her judicial campaign during work hours; and (10) interrupted two depositions she attended during her divorce case. The Michigan Supreme Court found the commission’s findings of fact were supported by the record, and its conclusions of law and analysis of the appropriate sanctions was correct. Respondent was ordered removed from her current office and suspended from holding judicial office for six years; the commission was ordered to submit an itemized bill of costs, fees, and expenses incurred in prosecuting the complaint. View "In re Theresa Brennan, Judge" on Justia Law

The Court of Appeals suspended Respondent, the Honorable Devy Patterson Russell, for six months without pay from her service as a judge of the district court and set conditions precedent to Respondent's reinstatement of her duties as a judge, holding that the Maryland Commission on Judicial Disabilities' conclusion that Respondent committed sanctionable conduct was supported by clear and convincing evidence.In addition to other misconduct, Respondent failed to handle and process search warrant materials in a manner consistent with Maryland Rule 4-601 and internal courthouse procedures and failed to treat fellow judges and courthouse staff with dignity and respect. The Commission found that Respondent engaged in misconduct and recommended that she be suspended for six months without pay and that she take remedial measures to assist her when she returned to her duties. The Supreme Court agreed that Respondent committed sanctionable conduct and suspended her for six months without pay. View "In re Judge Russell" on Justia Law

A standing order in the Third Chancery Court District (Mississippi) set motion days in advance and assigns the particular judge who will preside that day. H. R. Garner, a practitioner in the Third Chancery Court District, knew the directives of this standing order. Yet Garner still claimed that his opposing counsel was judge shopping by filing a contempt petition against Garner’s client and issuing a Rule 81(d) summons that noticed a hearing before a judge who had not been assigned the case. Although his opponent’s actions were authorized by Rule 1.06(C) and the District’s standing order, Garner filed what amounted to a hopeless motion to quash and for sanctions against him. In a twist, the Honorable Vicki Daniels, the judge actually assigned the contempt case, heard Garner’s motion to quash and request for sanctions, which Garner continued to pursue even though he was in front of his preferred judge. After reviewing the motion, Judge Daniels found what Garner’s opposing counsel had done was a “common practice” and was not improper. This prompted Garner’s opposing counsel to urge Judge Daniels to instead sanction Garner for filing a hopeless and frivolous motion, which she did: Garner and his client were sanctioned $1,000 under Rule 11 and the Litigation Accountability Act. Finding no abuse of discretion in Judge Daniels awarding sanctions against Garner, the Mississippi Supreme Court affirmed the sanction. View "Garner v. Smith" on Justia Law

Plaintiffs filed suit against certain judges of the Fourth Judicial District Court (Louisiana) as well as a law clerk employed by that court. Essentially, plaintiffs alleged the law clerk “spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly ‘handled’ court documents” in earlier litigation involving plaintiffs, and that the judges either aided or concealed these actions. The judges and law clerk filed motions to strike certain allegations from plaintiff’s petition and also filed exceptions of no cause of action. The district court granted the motions to strike and granted the exceptions of no cause of action. On appeal, a divided en banc panel of the court of appeal reversed the motions to strike in part. The court also reversed the granting of the exception of no cause of action as to the law clerk, but affirmed the granting of the exception of no cause of action as to the judges, finding they were entitled to absolute judicial immunity. Considering the "highly unusual and specific facts" of this case, the Louisiana Supreme Court concluded the court of appeal erred in finding the judges were entitled to absolute judicial immunity. Accepting the facts as alleged in the petition as true for purposes of the exception of no cause of action, the Supreme Court found plaintiff’s allegations regarding the judges’ supervision and investigation of the law clerk’s activities arose in the context of the judges’ administrative functions, rather than in the course of their judicial or adjudicative capacities. Therefore, accepting on the well-pleaded allegations of plaintiff’s petition, the Supreme Court found absolute judicial immunity would not apply, and plaintiff was able to state a cause of action against the judges. View "Palowsky v. Campbell et al." on Justia Law

Orland Park fired police officer McGreal in 2010. McGreal sued, alleging that his termination was retaliation for remarks he made community board meeting. The district court granted the defendants summary judgment, finding that McGreal had advanced only speculation to support his claims. McGreal had more than 70 disciplinary complaints on his record. The Seventh Circuit affirmed. The district court granted the defendants’ motion for attorney fees and directed McGreal’s attorney, DeRose, to pay the defendants $66,191.75 to the defendants--the cost incurred because DeRose fought the defense's summary judgment motion. The Seventh Circuit affirmed. Defense counsel had repeatedly requested that DeRose end the litigation, pointing out the lack of evidence, and had threatened Rule 11 sanctions. DeRose’s summary judgment filings were not well grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Discovery revealed an utter lack of evidentiary support for McGreal’s claims, but DeRose defended against summary judgment anyway. View "McGreal v. Village of Orland Park" on Justia Law

The Supreme Court granted a writ of prohibition and denied a requested writ of mandamus in this original action by WBNS 10-TV, Inc. against Franklin County Common Pleas Domestic Relations Court Judge Monica Hawkins, holding that prohibition was the proper vehicle to challenge the order denying courtroom access to 10-TV that was issued by Judge Hawkins without an evidentiary hearing and that this decision rendered moot 10-TV's alternative request for a writ of mandamus.After Judge Hawkins was arrested for driving under the influence a reporter for 10-TV made a written request for media access to the proceedings in Judge Hawkins's courtroom scheduled for that same day. Judge Hawkins denied the request without conducting the required closure hearing. 10-TV then commenced an original action seeking writs of prohibition and mandamus. In response, Judge Hawkins agreed that a writ of prohibition should issue. The Supreme Court granted the writ of prohibition, denied the request for a writ of mandamus as moot, and denied the requests in 10-TV's emergency motion for peremptory writs of prohibition and mandamus as moot. View "State ex rel. WBNS 10-TV, Inc. v. Hawkins" on Justia Law

Brooks, Debtor's CEO, was charged with financial crimes. In class action and derivative lawsuits, Debtor proposed a global settlement that indemnified Brooks for liability under the Sarbanes Oxley Act (SOX), 15 U.S.C. 7243. Cohen, Debtor’s former General Counsel and a shareholder, claimed that the indemnification was unlawful. The district court approved the settlement, Cohen, represented by CLM, appealed. The Second Circuit vacated, noting that the EDNY would determine CLM’s attorneys’ fees award. Debtor initiated Chapter 11 bankruptcy proceedings. The Bankruptcy Court confirmed Debtor’s liquidation plan, with a trustee to pursue Debtor’s interest in recouping its losses from the ongoing actions.Brooks died in prison. Because his appeal had not concluded, some of his convictions and restitution obligations were abated. Stakeholders negotiated a second global settlement agreement, under which $142 million of Brooks’ restrained assets were to be distributed to his victims; $70 million has been remitted to Debtor. The Bankruptcy Court awarded CLM fees for the SOX 304 claim; the amount would be determined if Debtor received any funds on account of the claim. CLM’s Fee Appeal remains pending at the district court.CLM requested a $25 million reserve for payment of its fees. The Bankruptcy Court ordered Debtor to set aside $5 million. CLM’s Fee Reserve Appeal remains pending. CLM then moved, unsuccessfully, for a stay of Second Settlement Agreement distributions. In its Stay Denial Appeal, CLM’s motion requesting a stay of distributions was denied. The Third Circuit affirmed. The $5 million reserve is sufficient. A $5 million attorneys’ fees award for 1,502.2 hours of legal work totaling $549,472.61 of documented fees would yield an hourly rate of $3,328.45 and a lodestar multiplier of over nine. In common fund cases where attorneys’ fees are calculated using the lodestar method, multiples from one to four are the norm. View "SS Body Armor I, Inc. v. Carter Ledyard & Milburn, LLP" on Justia Law

Robert Feldman ("Feldman") and the law firm of Haddon, Morgan & Foreman petitioned for relief from a probate court order requiring the firm to provide information to the special administrator concerning its representation of Feldman in a criminal prosecution for the murder of his wife Stacy, and to deposit funds held in its client trust account into the registry of the court. In response to the assertion by the special administrator that Colorado’s “slayer statute” applied to the funds at issue as proceeds of the decedent’s life insurance policy, the probate court determined that if Feldman were later found, in the manner prescribed by the statute, to be the decedent’s killer, he would be ineligible to receive those proceeds. Against that eventuality, the probate court found that compelling the return of the unearned funds in the firm’s client trust account would be the only way to protect the children’s interests, and that the court’s equitable powers permitted it to do so. The Colorado Supreme Court determined the probate court abused its discretion by issuing its order without weighing the considerations inherent in preliminarily enjoining the law firm from expending further funds in the representation of Feldman. In addition, however, because the slayer statute expressly protected third parties who receive a payment in satisfaction of a legally enforceable obligation from being forced to return that payment or from liability for the amount of the payment, no finding of a reasonable likelihood of success in attempting to force the return of the insurance proceeds would have been possible. Given this resolution, the Supreme Court found the disclosures ordered by the probate court would not have served their intended purpose. View "In re Feldman" on Justia Law

This case presented for the Georgia Supreme Court’s review an issue of first impression: the effects of the General Assembly’s wholesale revision in 2016 of the anti-SLAPP statute, OCGA 9-11-11.1, which substantially mirrored California Code of Civil Procedure 425.16. LTC Consulting, L.P. and two affiliated entities sued law firm Wilkes & McHugh, P.A. and one of its attorneys for violations of OCGA 31-7-3.2 (j), deceptive trade practices, and false advertising after the defendants ran full-page advertisements in local newspapers targeting patients of nursing homes owned by the plaintiffs. The defendants filed a Motion to Dismiss or to Strike Pursuant to OCGA sections 9-11-11.1 and 9-11-12 (b) (6), arguing among other things that OCGA 31-7-3.2 (j), enacted in 2015, violated the First Amendment. The motion was filed the day before a previously scheduled injunction hearing, but the trial court considered the defendants’ motion and denied it. The defendants appealed to the Court of Appeals, which transferred the case to the Georgia Supreme Court. The Supreme Court concluded the defendants met their burden under OCGA 9-11-11.1 to show that the plaintiffs’ claims were ones arising from acts that could reasonably be construed as acts in furtherance of the defendants’ right of free speech under the United States Constitution in connection with an issue of public interest or concern, thereby triggering the application of OCGA 9-11-11.1. The burden then shifted to the plaintiffs to establish that there was a probability that they would prevail on their claims. However, in analyzing these claims, the parties did not argue, and the trial court did not properly apply, the new standards for anti-SLAPP motions. Judgment was vacated and the matter remanded for reconsideration of the anti-SLAPP motion under the proper standards. View "Wilkes & McHugh, P.A., v. LTC Consulting, L.P. et al." on Justia Law

Appellant Stephan Palmer, Sr. appealed the grant of summary judgment in favor of appellee, Attorney Mark Furlan. While incarcerated, appellant filed a petition for postconviction relief (PCR). Attorney Furlan, an ad hoc public defender, was assigned to represent appellant in the PCR proceedings. The petition was litigated until the parties agreed to settle, arriving at a proposed stipulation to modify appellant’s sentence. December 23, 2015 the PCR court granted the parties’ stipulation motion. The entry order was immediately emailed to the criminal division; the criminal division issued an amended mittimus to the Commissioner of Corrections the same day; and the following day, the Department of Corrections received the amended mittimus and recalculated appellant’s sentence in accord with the PCR court’s order amending the sentence. Appellant was released from incarceration on December 24. Appellant then filed a civil action against Attorney Furlan, alleging legal malpractice. Not knowing that immediate release was at stake, the PCR court took more time than it would have otherwise in scheduling a hearing and approving the stipulation. Appellant characterized the length of incarceration between when he posited he would have been released if Attorney Furlan had more aggressively attempted to get the PCR court to act in an expedited manner and when he was actually released as wrongful and the basis for his damages. In affirming summary judgment, the Vermont Supreme Court concluded "The proof provided here, or rather the lack thereof, leaves all reasonable minds to speculate as to whether or not the PCR court would have: not scheduled a hearing on the motion; scheduled a hearing on the motion sooner than it did; issued an order on the motion in a shorter period of time after the hearing; come to the same conclusions and granted the stipulation motion; or behaved in any of the seemingly endless alternative manners a reasonable person could posit. Appellant’s argument simply leaves too much to speculation, which is something this Court and trial courts will not do when examining a motion for summary judgment." View "Palmer v. Furlan" on Justia Law