Justia Legal Ethics Opinion Summaries

Brock-Miller pled guilty, with a plea agreement, to conspiracy to possess with intent to distribute heroin. She received a sentence of 10 years’ imprisonment. She then challenged her conviction under 28 U.S.C. 2255, asserting ineffective assistance of counsel during plea negotiations. The court declined to hold a hearing and denied the motion. The Seventh Circuit reversed and remanded for a hearing. The district court erred when it concluded that her prior conviction under Indiana Code 16- 42-19-18 was a felony drug offense under 21 U.S.C. 802(44) and that Brock-Miller was eligible for a recidivist enhancement. The court analyzed the wrong version of the state law; there is little to no overlap between the controlled substances listed in the federal definition of “felony drug offense” and the prescription “legend drugs” regulated by the Indiana law. Counsel’s apparent error in identifying the applicable Indiana statute and failure to file a plainly meritorious objection could constitute deficient performance if proved. View "Brock v. United States" on Justia Law

William Harris and David Pettinato were two attorneys who represented Summit Park Townhome Association who represented Summit Park in a lawsuit against its insurer. The two attorneys were sanctioned for failing to disclose information. The Tenth Circuit affirmed sanctions against them, finding that regardless of whether the district court had authority to require the disclosures, the attorneys were obligated to comply. They did not, and the district court acted reasonably in issuing sanctions, determining the scope of the sanctions, and calculating the amount of the sanctions. View "Auto-Owners Insurance Co. v. Summit Park Townhome Assoc." on Justia Law

In 2016, the court of appeal held that if the advocacy of an intervenor contributes to a California Public Utilities Commission (CPUC) proceeding by assisting CPUC in the making of any order or decision (Pub. Util. Code 1802(i))[3]) that is part of the final resolution of the proceeding, whether or not on the merits, CPUC may determine whether, in its judgment, the intervenor’s contribution was substantial enough to merit a compensation award. The court of appeal vacated CPUC's subsequent award. CPUC's determination of “substantial contribution” to some interim or procedural “order or decision” is not alone, sufficient to justify "awarding every penny" claimed for work in connection with the proceeding as a whole. CPUC needed to show how its findings fit into the statutory requirement that compensable work be traceable to some “order or decision,” which is a measure of whether an intervenor achieved some degree of advocacy success. CPUC retains ample discretion to assess whether a given type of contribution counts as “substantial” in a proceeding. In exercising that discretion, CPUC may recognize that even small victories may have a major impact on the course of a proceeding, but there must still be some objective indication of successful advocacy. The remand decisions did not trace the amounts of fees and costs to specific orders or decisions. View "New Cingular Wireless PCS, LLC v. Public Utilities Commission" on Justia Law

Al-Shaikh, an orthopedic surgeon, moved his Fremont practice and sought approval by the Department of Health Care Services (DHCS), under Medi-Cal regulations. He had been an approved Medi-Cal provider in Fremont for six years. DHCS denied his application, claiming that Al-Shaikh’s fee arrangement with his billing service was unlawful. Al-Shaikh appealed. DHCS agreed the provisions it had cited were inapplicable but cited another state law, incorporating a federal Medicaid regulation. Al-Shaikh filed suit, then relocated his Auburn practice, for which he used the same billing service; the relocation was approved by a different DHCS regional office. Al-Shaikh cited an Office of the Inspector General publication that expressly states his fee arrangement does not violate federal law. DHCS approved the Fremont office after three years. The court dismissed the case as moot. Al-Shaikh moved for fees under Code of Civil Procedure 1028.5, which allows a small business or a licensee that prevails in an action against a state regulatory agency to recover a maximum of $7,500 in fees if the agency acted without substantial justification. The court of appeal directed the superior court to award Al-Shaikh the full amount recoverable under section 1028.5. DHCS has an obligation to be knowledgeable about the law it is charged with implementing and was unable to cite a case or regulatory decision supporting its position; it acted without substantial justification. View "Al-Shaikh v. State Department of Health Care Services" on Justia Law

The Supreme Court affirmed the decision of the district court affirming the decision in favor of Petitioner’s former attorneys (Respondent-law firm) by a panel of the Wyoming State Bar Committee for Resolution of Fee Disputes. The Court held (1) the panel’s conclusion that it was neither unreasonable nor abusive for Respondent to bill its time using minimum increments of fifteen minutes was supported by substantial evidence; and (2) substantial evidence supported the panel’s conclusion that Respondent exercised billing judgment and did not excessively bill Petitioner for substantive and necessary communication between firm members and employees about Petitioner's case. View "Manigault v. Daly & Sorenson, LLC" on Justia Law

Although the Maryland Commission on Judicial Disabilities violated applicable Maryland Rules in proceedings against Judge Pamela J. White, the violations did not ultimately deprive Judge White of a fundamentally fair proceeding.In 2015, the Commission concluded that probable cause existed to believe that Judge White had committee sanctionable conduct and filed public charges against Judge White. The Commission later publicly reprimanded Judge White by unanimous vote, concluding that Judge White violated the Maryland Code of Judicial Conduct. On appeal, Judge White alleged that the Commission denied her procedural due process. The Court of Appeals disagreed, holding that although the proceeding before the Commission contained several mistakes, Judge White received the fundamental due process protections under the Maryland Constitution and the Maryland Rules. View "In re Honorable Pamela J. White" on Justia Law

Judge Persky was appointed to the superior court in 2003 and has been reelected. Dauber and others submitted a “Petition for Recall of Judge Aaron Persky” to the Registrar of Voters (Elections Code 11006, 11020-11022). Judge Persky responded that under the California Constitution, the Secretary of State was the proper official for the recall of state officers and that the petition contained an “incorrect and misleading” demand for an election to choose a successor because a vacancy would be filled by the Governor. An amended recall petition was submitted to the Registrar and approved for circulation. Judge Persky sought a temporary restraining order to compel the Registrar to withdraw its certification and refer the matter to the Secretary of State; to enjoin the petition’s circulation until the Secretary of State certified it; and to enjoin circulation while the petition contained the "misleading" statement. The court of appeal affirmed that the Registrar was the proper official to approve recall petitions for superior court judges and that the Persky recall petition was not misleading. The statutory process for recall of a “local officer” was expressly made applicable to recall of a superior court judge and is not contrary to the state constitution; it does not impermissibly distinguish between appellate courts and superior courts, including their classification as “state” or “local” officers. View "Perksy v. Bushey" on Justia Law

William Harris and David Pettinato were attorneys who represented Summit Park Townhome Association. While representing Summit Park against its insurer, the two attorneys were sanctioned for failing to disclose information. In this appeal, the attorneys raised five arguments to challenge the sanctions. After review, the Tenth Circuit affirmed: “Regardless of whether the district court had authority to require the disclosures, the attorneys were obligated to comply. They did not, and the district court acted reasonably in issuing sanctions, determining the scope of the sanctions, and calculating the amount of the sanctions.” View "Auto-Owners Insurance Co. v. Summit Park Townhome Assoc." on Justia Law

C&S sought interlocutory review of the district court’s order concluding that the crime-fraud exception could defeat a law firm and its partner's assertions in discovery of attorney-client privilege and attorney work product protection. The Eleventh Circuit held that interlocutory review was appropriate to address only one aspect of the district court's order; vacated as improvidently granted the motion panel's order in part and elected not to exercise the court's discretion to review the question posed in that part: whether the district court erred in applying agency principles to conclude that C&S intended to commit a crime or fraud and created attorney work product or made communications in furtherance of the crime or fraud; declined to review this issue because it did not present a pure question of law suitable for review on an interlocutory basis under 28 U.S.C. 1292(b); and thus vacated the motion panel's earlier order in part and denied C&S's petition in part. The court held that the crime-fraud exception may defeat work product protection in this circumstance and thus affirmed the part of the district court's order determining that the crime-fraud exception could be applied in this case. View "Drummond Co. v. Conrad & Scherer, LLP" on Justia Law

Under Fed. R. Civ. P. 37's general discovery enforcement provisions, a court can order a party to produce its nonparty expert witness at a deposition, and if the party makes no effort to ensure that its witness attends the deposition, sanction the party's counsel when the witness fails to appear unless the failure to produce the expert "was substantially justified or other circumstances make an award of expenses unjust." The Ninth Circuit affirmed the district court's contempt judgment stemming from the failure of plaintiffs' counsel to pay sanctions when they did not produce their expert at a deposition as ordered. In this case, the panel held that Rule 37 sanctions were reasonable where there was no justification for plaintiffs' failure to attempt to comply with a court order. The court held that the award of defendants' deposition-related costs was not unjust, but was rather the mildest of the possible Rule 37 sanctions. View "Sali v. Corona Regional Medical Center" on Justia Law