Justia Legal Ethics Opinion Summaries

Following the termination of his employment, plaintiff Fernando Martinez sued Stephen Stratton O’Hara (O’Hara), Career Solution and Candidate Acquisitions (CSCA), O’Hara Family Trust, OCRE, Inc., Professional Realty Council, Inc., and Pacific Valley Realty, Inc. (collectively, defendants) alleging five employment-related claims. Plaintiff’s wage claim was resolved before trial and his fraud claim was dismissed when the trial court granted defendants’ motion for nonsuit. A jury returned a verdict awarding a total of $8,080 in damages on the claim for sexual harassment in violation of the California Fair Employment and Housing Act (FEHA). Following a bench trial of plaintiff’s remaining claims seeking an injunction for unfair advertising and unfair business practices, the trial court found in favor of defendants. Plaintiff moved for attorney fees, which was denied. Plaintiff appealed the fee order, but the Court of Appeal affirmed. The Court reported plaintiff’s attorney Benjamin Pavone to the California State Bar for manifesting gender bias: the notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as “succubustic.” The Court published this portion of the opinion to make the point that gender bias by an attorney appearing before the Court would not be tolerated. Furthermore, the attorney was reported to the Bar for a statement in the notice of appeal suggesting the trial court attempted to thwart service of the signed judgment on plaintiff in an effort to evade appellate review and statements in the appellate briefs he signed on behalf of plaintiff accusing the judicial officer who ruled on the motion for attorney fees of intentionally refusing to follow the law. None of these serious charges was supported by any evidence. View "Martinez v. O'Hara" on Justia Law

A Ninth Circuit judge, the Honorable Stephen Reinhardt, died on March 29, 2018. The court listed Judge Reinhardt as the author of an en banc decision issued on April 9, 2018. Counting his vote made Judge Reinhardt’s opinion a majority opinion that constitutes a precedent that all future Ninth Circuit panels must follow. Without Judge Reinhardt’s vote, the opinion would have been approved by only five of the 10 members of the en banc panel who were still living when the decision was filed; those five concurred in the judgment for different reasons. The Ninth Circuit indicated that the majority opinion and all concurrences were final, and voting was completed before his death. The Supreme Court vacated, noting that a judge generally may change his position up to the moment when a decision is released. When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge; by statute, 28 U.S.C. 46, he was without power to participate in the en banc court’s decision at the time it was rendered. The Ninth Circuit “effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.” View "Yovino v. Rizo" on Justia Law

The Katten law firm signed an engagement letter with Bausch & Lomb, a corporate affiliate of Valeant, that broadly defined Katten’s client as any Valeant entity. Attorneys Mukerjee and Soderstrom represented Mylan during various stages of proceedings in which Valeant was adverse, first, as Alston & Bird attorneys, but later, as Katten attorneys. Valeant and others moved to disqualify Katten as counsel for Mylan in three pending appeals concerning patents and trademarks. The Federal Circuit granted those motions. Katten has an ongoing attorney-client relationship with Valeant and its subsidiaries, so Katten’s representation of Mylan in these appeals presents concurrent conflicts of interest in violation of Rule 1.7(a) of the Model Rules of Professional Conduct. View "Dr. Falk Pharma GMBH v. Generico, LLC" on Justia Law

The Court of Appeals reversed the decision of the Appellate Division affirming Supreme Court’s dismissal of the claims in this case, holding that failure by a nonresident attorney admitted in New York to comply with the requirement to maintain a physical office in the state in order to practice law in New York at the time a complaint is filed does not render that filing a nullity.In dismissing the remaining claims against Defendants without prejudice, Supreme Court found that Plaintiff’s counsel resided in Pennsylvania and there was no evidence that counsel maintained an office of phone in New York when the action was filed. The Appellate Division affirmed. The Court of Appeals reversed, holding (1) a violation of N.Y. Jud. Law 470 does not render the actions taken by the attorney involved a nullity; and (2) instead, the party may cure the section 470 violation with the appearance of a compliant counsel or an application for admission pro hac vice by appropriate counsel. View "Arrowhead Capital Finance, Ltd. v Cheyne Specialty Fin. Fund L.P." on Justia Law

Attorney Boland was an expert witness and defense counsel in child pornography cases. To demonstrate that pornographic images may be altered to appear that minors were engaged in sexual conduct when they were not, Boland purchased innocent stock images of minors and "morphed" them into pornographic images for use in criminal proceedings. The issue of whether Boland committed a crime in creating and displaying these images of child pornography was raised and Boland eventually voluntarily entered into a Pretrial Diversion Agreement, explaining and apologizing for creating the images. Two of the minors, depicted in the images Boland created, won awards under 18 U.S.C. 2252A(f), which provides civil damages for victims of child pornography. Boland filed a Chapter 7 bankruptcy petition; the minors filed an unsuccessful adversary proceeding, asserting their awards were non-dischargeable debts for willful and malicious injury under 11 U.S.C. 523(a)(6).The Sixth Circuit Bankruptcy Appellate Panel remanded. Collateral estoppel did not apply on the issue of whether Boland intended to injure the minors since intent was not actually litigated or necessary to the outcome of the prior litigation, but stipulations made through Boland's Diversion Agreement and judicial decisions concerning his liability to the minors established that Boland knowingly created and possessed pornographic images involving images of real children. The bankruptcy court did not consider the legal injury suffered by the minors as a result of the invasion of their privacy and reputational interests. Boland acted without justification, maliciously injuring the minors under 11 U.S.C. 523(a)(6). View "In re Boland" on Justia Law

Jackson filed a pro se complaint against Kaiser under the California Fair Employment and Housing Act. After unsuccessfully attempting to serve the summons and complaint, Jackson sought counsel. Jackson never properly served Kaiser; Kaiser never appeared in the action. In April 2016, Jackson retained Horowitz to assist her “with regard to” the suit. Horowitz advised Jackson to dismiss her pending lawsuit without prejudice, believing that she could re-file by September 30, 2016. Although they apparently contemplated that Horowitz would prepare a new complaint, Jackson did not retain Horowitz as counsel of record. Jackson filed a Request for Dismissal prepared by Horowitz. On September 9, 2016, Horowitz informed Jackson that his advice had been based on his misunderstanding of the statute of limitations, which had expired on December 29, 2015, the date Jackson had filed her action. Jackson’s claims are now time-barred. Jackson retained Horowitz on a limited scope basis to represent her on an application seeking relief from the dismissal under Code of Civil Procedure 473(b). The court denied that application, stating that Horowitz’s erroneous advice could not serve as the basis for relief because he did not represent Jackson at the time and did not make an appearance in the case until October 2016, and section 473's mandatory relief provision did not apply to voluntary dismissal. The court of appeal affirmed. Although the order was appealable, section 473(b) mandatory relief is unavailable for this type of voluntary dismissal. View "Jackson v. Kaiser Foundation Hospitals" on Justia Law

In 2008, Defendant was charged with the sexual assault of his 10-year-old daughter, J.G. The indictment alleged that defendant inserted his fingers in J.G.’s vagina, licked her vagina, and touched her buttocks. After his conviction, Defendant filed multiple pro se collateral challenges to his convictions and at various times was represented by different attorneys. In 2015, Defendant filed a pro se motion seeking DNA testing under the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3). The state argued that the controversy at trial was not whether another individual had committed the crime but whether the alleged assault occurred at all. At a hearing, Defendant appeared pro se but was accompanied by attorney Brodsky, who sought to file a Supreme Court Rule 13 limited scope appearance. The court denied Brodsky’s oral request, stating that allowing the motion would mean that attorney Caplan, Brodsky, and the defendant were all working on the case. Defendant later argued extensively in support of his DNA motion. Brodsky was not present. The appellate court vacated the denial of the motion, citing the U.S. Supreme Court’s "Powell: decision concerning a court's refusal to hear chosen counsel. The Illinois Supreme Court reversed, finding no “Powell” violation. A section 116-3 action is civil in nature and independent from any other collateral post-conviction action and Brodsky’s request failed completely to comply with the requirements of that rule. View "People v. Gawlak" on Justia Law

In an action arising out of a fee dispute between a law firm and two clients, the action was removed to federal court and then the unpaid-fees claims proceeded to arbitration. The district court granted the firm relief from the stay and issued an order dividing the counterclaims into two categories: those the clients could raise in arbitration and those they could not.Determining that it had jurisdiction, the Eighth Circuit held that the clients' counterclaims were within the scope of what the parties agreed to arbitrate and the counterclaims seeking something else -- like money from the firm -- were not. Accordingly, the court affirmed the district court's judgment, with one exception. The court held that the district court should not have decided that the clients terminated the relationship, because the arbitrator should decide the issue. View "Meierhenry Sargent LLP v. Williams" on Justia Law

Adams, a resident and member of the State Bar of Delaware, wanted to be considered for a state judicial position. Following the announcement of several judicial vacancies, Adams considered applying but ultimately chose not to because the announcement required that the candidate be a Republican. Because Adams was neither a Republican nor a Democrat, he concluded that any application he submitted would be futile. Adams challenged the Delaware Constitution's provision that effectively limits service on state courts to members of the Democratic and Republican parties, citing Supreme Court precedent: A provision that limits a judicial candidate’s freedom to associate (or not to associate) with the political party of his choice is unconstitutional. The governor responded that because judges are policymakers, there are no constitutional restraints on his hiring decisions. The Third Circuit ruled in favor of Adams, concluding that judges are not policymakers because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests. The portions of Delaware’s constitution that limit Adams’s ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment rights. View "Adams v. Governor of Delaware" on Justia Law

In this child custody dispute, the trial court imposed $50,000 in sanctions jointly and severally against an attorney and her client for disclosing information contained in a confidential child custody evaluation report. The Court of Appeal affirmed in part and held that the trial court did not abuse its discretion by imposing sanctions on the attorney. In this case, the attorney intentionally asked questions regarding a child custody evaluation that included a psychological evaluation which disclosed highly personal information about the child and her family. The court concluded that the attorney's actions were reckless. However, the court reversed in part and held that there was nothing in the record to suggest that the client directed or even encouraged the attorney to disclose privileged information. View "Anka v. Yeager" on Justia Law