Justia Legal Ethics Opinion Summaries

In 2010, Debra Hackett was seriously injured in an accident in Sacramento County in which a tractor and trailer owned by Silva Trucking, Inc. and driven by Elaine McDonold jackknifed and collided with the vehicle being driven by Hackett. In 2012, the Hacketts filed a personal injury action in Sacramento County against Silva Trucking and McDonold. The jury awarded the Hacketts $34.9 million in damages. Silva Trucking was insured by Carolina Casualty Insurance Company (CCIC), who retained the law firm Cholakian & Associates to provide a defense. Silva Trucking had an excess liability insurance policy with Lexington Insurance Company (LIC), who retained the law firm Lewis, Brisbois, Bisgaard & Smith, LLP (Lewis Brisbois) as counsel. In 2014, Silva Trucking and McDonold brought suit in Sacramento County against LIC, CCIC, Cholakian & Associates and individual attorneys Kevin Cholakian and Jennifer Kung (collectively Cholakian), and Lewis Brisbois and individual attorney Ralph Zappala (collectively Lewis Brisbois). As to LIC and CCIC, the complaint alleged bad faith and breach of contract. As to the law firms and attorneys, the complaint alleged legal malpractice. The gravamen of the complaint was that the insurers unreasonably refused to accept the policy limit demand when the insured’s liability was clear and damages were known to be in excess of the policy limit. The attorneys failed to advise their insurer clients to accept the demand and the consequences of failing to do so, and failed to advise Silva Trucking and McDonold of their need for personal counsel. LIC and CCIC responded with demurrers. Lewis Brisbois answered with a general denial and asserted 22 affirmative defenses. Under Code of Civil Procedure section 396b, subdivision (a), where an action has been filed in the “wrong venue,” a defendant may move to transfer the case to the “proper court for the trial thereof.” In such a case, “if an answer is filed,” the court may consider opposition to the motion to transfer and may retain the action in the county where filed to promote the convenience of witnesses or the ends of justice. The question this case presented for the Court of Appeal's review was whether, in a multi-defendant case, an answer must be filed by all defendants before the court may consider opposition to the motion to transfer venue. The Court concluded the answer was yes. In this case, the trial court considered opposition to the motion before all defendants had answered the complaint. Accordingly, the Court issued a preemptory writ of mandate directing the trial court to vacate its order denying the motion to transfer and to issue a new order granting the motion. View "Cholakian & Assoc. v. Super. Ct." on Justia Law

Jay Simkin filed complaints with the Board of Bar Overseers (Board) alleging that certain attorneys committed breaches of the rules of professional conduct in connection with proceedings involving the revocation and reinstatement of Simkin’s license to carry firearms. Bar counsel investigated the complaints but declined to pursue them. After review, the Board determined not to proceed. Simkin subsequently filed a petition requesting that the Supreme Judicial Court enter findings that the attorneys had violated the rules of professional conduct, which, Simkin claimed, would lead to bar counsel’s reconsideration of her decision not to pursue his complaints against the attorneys. A single justice of the Court denied relief. The Supreme Judicial Court affirmed, holding that Simkin had no further standing in the matter, as a private individual cannot prosecute a judicial action for attorney discipline. View "In re Simkin" on Justia Law

Florida voters elect judges. The Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, stating that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns. Yulee mailed and posted online a letter soliciting financial contributions to her campaign for judicial office. The Florida Bar disciplined her for violating a Bar Rule requiring candidates to comply with Canon 7C(1). The Florida Supreme Court upheld the sanction against a First Amendment challenge. The U.S. Supreme Court affirmed. Florida’s interest in preserving public confidence in the integrity of its judiciary is compelling.. Unlike the legislature or the executive, the judiciary “has no influence over either the sword or the purse,” so its authority largely depends on the public’s willingness to respect its decisions. Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: it is not riddled with exceptions. Allowing a candidate to use a committee and to write thank you notes reflect Florida’s effort to respect the First Amendment interests of candidates and contributors. Canon 7C(1) is not overinclusive It allows judicial candidates to discuss any issue with any person at any time; to write letters, give speeches, and put up billboards; to contact potential supporters in person, on the phone, or online; and to promote their campaigns through the media. Though they cannot ask for money, they can direct their campaign committees to do so. Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety. Canon 7C(1) must be narrowly tailored, not “perfectly tailored” to address that concern. View "Williams-Yulee v. Florida Bar" on Justia Law

In response to time demands of this primary election appeal, the Pennsylvania Supreme Court entered a per curiam order on an expedited basis vacating the order of the Commonwealth Court and directing that Appellee Michael W. Beyer’s name be stricken from the primary ballot for the Democratic Party nomination for the Office of Representative in the General Assembly for the 131st Legislative District. In the per curiam order, the Court stated that an opinion would follow; this was that opinion. Beyer filed nomination petitions with the Department of State seeking placement of his name on the ballot for Democratic Nomination for the Office of Representative in the General Assembly. Appellant Objectors, qualified electors residing in the 131st Legislative District, petitioned to set aside the nomination petition on grounds that Beyer intentionally misrepresented his occupation as “lawyer” on both his Statement of Financial Interests (SOFI) and nomination petitions. At a hearing, .Beyer confirmed he had graduated law school, but had yet to pass or even take any state’s bar examination. Consequently, he was not licensed to practice law at the time he circulated his nomination petitions. He listed his occupation as “lawyer,” he said, because he understood the definition of “lawyer” as found in the Oxford English Dictionary to include someone who studied the law. He therefore thought it fair comment to describe his profession or occupation as “lawyer” on his nomination petition. Though she found that he likely used the title of “lawyer” to “enhance his stature with the electorate,” the trial judge accepted Beyer's explanation that he believed his having studied law and graduated law school in the past, alone, entitled him to claim the occupation. Appellant Objectors contended the Commonwealth Court erred in failing to find that Beyer’s self-designation as a lawyer-by-occupation represented a material defect borne of the intent to mislead the electorate. The Supreme Court agreed: the defect was both material to an elector’s decision to nominate a legislator and incurable by amendment because the candidate knew his representation had the potential to mislead signers about his credentials for the legislative office he sought. Having demonstrated as much, Objectors met their burden of disproving the presumptive validity of the contested nomination petition. Striking Mr. Beyer’s petition under such circumstances to avoid misleading the electorate was consistent with the Election Code’s purpose of protecting, and not defeating, a citizen’s vote. View "In Re: Nom. of Michael W. Beyer" on Justia Law

Attorney Novak represented Kelly between 2007 and 2012. The two executed a contingency attorney fee agreement that granted Novak lien rights over any settlement Kelly received. In 2011, Novak filed a probate petition which alleged Kelly was a pretermitted spouse of Teitler and negotiated a considerable settlement. The probate court approved the settlement which awarded Kelly a substantial interest in the Dana Teitler Trust. Kelly died. Novak filed suit to enforce the attorney lien in the 2007 fee agreement. The probate court denied the petition, holding that the proper procedure to recover fees was by claim against Kelly’s estate under section 9000; plaintiff was required to file a creditor’s claim within one year of Kelly’s death; the statute of limitations barred the claim; and section 5000(a), which provides a nonprobate transfer, was inapplicable. The court of appeal reversed. Novak had not forfeited a claim under section 9391, that he was an equitable lienholder and did not need to file a creditor’s claim in probate. An assignment provision in the settlement agreement in the event of Kelly’s death did not destroy Novak’s pre-existing attorney fee lien rights. View "Novak v. Fay" on Justia Law

Cypress sued, alleging that Maxim, had misappropriated a trade secret, or was in the process of doing so, by seeking to hire away specialists in touchscreen technology, a field in which Cypress and Maxim compete. Maxim responded that it was entitled to solicit prospective employment candidates in Cypress’s workforce and that there was no evidence it had acquired, or was seeking to acquire, any trade secret. After failing to secure temporary injunctive relief, and failing to obtain an order placing under seal evidence derived by Maxim from public sources, Cypress dismissed the action. The trial court awarded Maxim attorney fees under Civil Code 3426.4, which authorizes such an award to the prevailing party where a claim for misappropriation of trade secrets is found to have been made in bad faith. The court of appeal affirmed, stating that the finding of bad faith was amply supported by evidence that defendants did no more, and Cypress accused them of no more, than attempting to recruit the employees of a competitor. Cypress dismissed the suit to avoid an adverse determination on the merits. View "Cypress Semiconductor Corp. v. Maxim Integrated Prods., Inc." on Justia Law

Convent filed suit in the Circuit Court of Pulaski County, Arkansas, seeking to appeal a resolution that the North Little Rock City Council passed declaring Convent's property a nuisance and condemning the property. In the same complaint, Convent asserted claims under 42 U.S.C. 1983, 1985, 1986, and 1988 and the Arkansas Civil Rights Act, Ark. Code 16-123-101, and a common law claim of trespass. The defendants removed the case to federal district court based on the federal claims and then moved to dismiss the complaint for failure to state a claim. The court did not grant the motion, but found that it lacked subject matter jurisdiction over Convent's claims based on Convent's failure to exhaust its administrative remedies; the court remanded the case to state court. Convent sought costs, fees, and expenses incurred due to “improper removal." The district court rejected the motion. The Eighth Circuit affirmed. The defendants had an objectively reasonable basis for removal of this action to federal court. View "Convent Corp. v. City of North Little Rock" on Justia Law

Ragozzine was a tenure-track professor at Youngstown State University. He did not produce much scholarship. Ragozzine attributed the delay to his lab’s not being fully operational until his second academic year. In his fifth academic year, his mother and his wife fell ill, with some caretaking responsibilities falling on him. He was granted a year’s delay in the review of his tenure application. Although he met the minimum requirements with a last-minute flurry of publications, he was denied tenure because YSU determined that he lacked promise of consistent scholarly production. Ragozzine sued, alleging that he was discriminated against on the basis of sex in violation of Title VII and the Equal Protection Clause; that YSU violated his rights under the Family Medical Leave Act, and that irregularities in his tenure review violated his procedural and substantive due process rights. The district court granted the defendants summary judgment. Ragozzine subsequently moved to disqualify the judge, based on a previously undisclosed dating relationship between the judge and a YSU faculty member, arguing that the relationship created an appearance of impropriety under 28 U.S.C. 455 and the Code of Conduct for Judges. The district court denied that motion, concluding that no reasonable person would question her impartiality. The Sixth Circuit affirmed. View "Ragozzine v. Youngstown State Univ." on Justia Law

In 2004 the law firm was engaged to bring a medical malpractice action on behalf of a 14-year-old girl who had become paralyzed after surgery. The firm filed two complaints in Virginia state court. Each was dismissed: the first without prejudice for failure to correctly caption a pleading; the second with prejudice for filing outside the statute of limitations. Shortly thereafter, the firm applied for and obtained a new professional liability insurance policy. Asked whether there were “any circumstances which may result in a claim being made,” the firm responded “no.” The firm informed the insurer of the incident in 2009, but represented that it had occurred in 2008. In 2011, the insurance company noticed that the firm had made the caption error in 2006, before the policy period. In 2012, it notified the firm that it reserved its rights to deny coverage under the known risk exclusion. The girl filed a legal malpractice action in 2012, and was awarded $1,750,000 in 2013. The court found, as a matter of law and without expert testimony, that the firm was on notice of the potential malpractice claim and rejected arguments that the insurer had forfeited or waived its right to deny coverage. The D.C. Circuit affirmed. View "Chicago Ins. Co. v. Paulson & Nace, PLLC" on Justia Law

John McConnell created a trust naming his three children - James McConnell, Kathleen Hewitt, and Amy Sheridan - as beneficiaries. A decade later, Hewitt filed an application for, inter alia, a trust accounting and removal of a trustee. Plaintiffs in error represented Hewitt during the proceedings on the application. The probate court approved a stipulated agreement authorizing certain distributions to Hewitt and Sheridan from the trust. McConnell appealed, claiming that he did not receive notice of the probate proceedings and would not have consented to the terms of the stipulated agreement if he had had the opportunity to participate. The trial court issued an order to show cause why McConnell’s appeal should not be sustained and the probate court’s order vacated. The court ordered the Plaintiffs in error to appear at the hearing on the order to show cause. The plaintiffs in error appeared at the hearing and testified about their involvement in the proceedings before the probate court. Thereafter, the plaintiffs in error filed this writ of error challenging the trial court’s authority to order that they appear in court. The Supreme Court dismissed the writ of error, holding that the trial court’s order was not a final judgment from which a writ of error may be brought. View "McConnell v. McConnell" on Justia Law