Justia Legal Ethics Opinion Summaries

Defendants engaged in discovery misconduct that was sufficiently egregious to cause the district court to enter an order of default against them. Although defendants subsequently challenged the default order as erroneous, defendants did not challenge the order of default by way of a Federal Rule of Civil Procedure 55(c) or 60(b). At issue was whether Judge Real, a district court judge, had the power to impose default as a sanction for discovery misconduct and assuming such power, whether Judge Real abused his discretion by imposing default rather than lesser sanctions. The court held that defendants' failures to comply with orders of the court provided Judge Real with the power under Rule 37(b) to impose sanctions sua sponte, up to and including default and that Judge Wilson appropriately revisited previous orders of the court when he replaced Judge Real after Judge Real recused himself. The court also held that the district court possessed the power to impose the sanction of default and that the district court did not abuse its discretion by doing so. Accordingly, the judgment was affirmed.

Defendant, convicted under 18 U.S.C. 371 of conspiracy to defraud the United States while serving as in-house general counsel to the company involving the company's filing of false tax returns with the IRS. He was sentenced to 41 months of imprisonment, followed by three years of supervised release, and ordered to pay restitution to the IRS. The Sixth Circuit affirmed. The jury instructions adequately addressed the elements of conspiracy. There was no need for mention of the attorney-client privilege or of an attorney's potential obligation to report illegal activity. The government’s theory of liability was not dependent on whether defendant had an affirmative duty to inform, yet failed to do so; conviction did not turn on whether defendant's actions were governed by the attorney-client privilege. There was sufficient evidence to support the conviction.

Petitioner was convicted of drug and firearm offenses in Michigan state court based on her presence in a house where the drugs were found. She did not own the house and claimed that she did not know the drugs were there. Her lawyer, high on cocaine for much of the time he represented her, never interviewed any of the other people in the house or called them as witnesses. The district court rejected a habeas corpus petition as untimely. The Sixth Circuit remanded. The one-year limitations period on habeas applications by state prisoners, 28 U.S.C. 2244, includes an exception: when a prisoner files an original petition within the one-year deadline, and later presents new claims in an amended petition filed after the deadline passes, the new claims relate back to the date of the original petition if the new claims share a common core of operative facts. Petitioner failed to present the claim in state court and, therefore, has not exhausted remedies, and the district court must decide whether to hold the claim in abeyance.

After Dimitri Henley was convicted of five counts of second degree sexual assault, Henley made several attempts to seek a new trial. Henley also moved Justice Roggensack to recuse herself from the review of his case. Roggensack denied the motion. The current appeal involved a motion for reconsideration of the Supreme Court's decision reversing the circuit court's order granting Henley a new trial. Henley argued that by denying him a new trial and by providing no court procedures for reviewing Justice Roggensack's decision not to recuse, the Court denied Henley's right to due process under the Fourteenth Amendment. The Supreme Court held (1) the motion for reconsideration met none of the criteria for granting a motion for reconsideration and was therefore denied; (2) determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought; (3) a majority of the Court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Supreme Court justice on a case-by-case basis; and (4) Henley received due process.

Court-appointed receiver Michael Polsky filed a complaint against defendants Daniel Virnich and Jack Moores, owners and officers of Communications Products, for breach of their fiduciary duties to the corporation after Communications Products defaulted on a loan to its largest creditor. The Supreme Court accepted review but split three to three. On return to the court of appeals, the judgment was reversed. Polsky filed a petition to review, which the Supreme Court granted. The Court then affirmed the court of appeals. The current action involved Polsky's motion to disqualify Justice Roggensack, asserting that because Justice Roggensack had not participated in the case when it was previously certified to the Court and when the Court's decision remanded the matter to the court of appeals, she should have been disqualified from participation in the decision to affirm the court of appeals. The Supreme Court denied Polsky's motion, holding (1) the Court does not have the power to remove a justice from participating in an individual proceeding, on a case-by-case basis, and (2) due process is provided by the decisions of the individual justices who participate in the cases presented to the court.

Petitioner, an attorney appointed under the Criminal Justice Act (CJA), 18 U.S.C. 3006A, appealed from various orders of the district court, asking the district court to reimburse her for various extrajudicial activities undertaken "to delay and prevent" the execution of a Missouri convicted murderer. The court held that the CJA did not confer jurisdiction on a circuit chief judge to review a district court's reduction of a CJA voucher and therefore, petitioner's request for such review was dismissed for lack of subject matter jurisdiction.

Charged with conspiracy to possess and distribute at least five kilograms of cocaine and at least fifty grams of crack cocaine (21 U.S.C. 841), and for possession of a firearm in furtherance of a drug trafficking offense (18 U.S.C. 924), defendant retained private counsel. After receiving notice of a potential conflict of interests based on the possibility that the attorney could be called as a witness with respect to how he received payment, the court disqualified the attorney and appointed counsel. Defendant was sentenced to life imprisonment on the cocaine offenses and to 60 months for the firearm. The Seventh Circuit affirmed, rejecting a Sixth Amendment claim. The disqualification of counsel was not plain error. The prosecutor's closing argument did not amount to an impermissible "once a drug dealer always a drug dealer" statement, but simply questioned the defendant's credibility and character.

The former (2001-2006) Assistant Secretary of State for Protocol Affairs at the Puerto Rico State Department sued the Secretary of State under 42 U.S.C. 1983, alleging that the official fired him due to his political affiliation. The district court dismissed, holding that plaintiff could be terminated without cause because he held a trust position for which party affiliation was an appropriate qualification, and fined plaintiff's attorneys $1000 each, concluding that the pleadings and responses that they submitted violated Federal Rule of Civil Procedure 11(b). The First Circuit affirmed; plaintiff's position was not federally protected against political discrimination. The pleadings at issue consisted, in large part, of speculation and conclusory allegations lacking evidentiary support.

Plaintiff filed several suits against healthcare groups on behalf of the United States, claiming violation of the Medicare Secondary Payer Act, 42 U.S.C. 1395y(b). No court has ever found that the MSP is a qui tam statute, permitting private attorneys general to sue on behalf of the United States. The Sixth Circuit found plaintiff was on notice of the frivolous nature of his filings from their inception in the Tennessee district courts and remanded for a show-cause hearing on why sanctions should not issue. The district court awarded sanctions to two defendants in amounts of $131,158.50 and $145,431.19. The Sixth Circuit affirmed, but denied an award for the appeal.

The estate sued the church for wrongful death, alleging that its members deprived decedent of his psychiatric medication, and that while in a mentally deteriorated state caused by the abrupt denial of his prescription, he shot and killed himself. A state court judge ordered the estate's attorney to withdraw, based on settlement of prior state litigation against the church that allegedly prohibited the attorney from participating in any adversarial proceeding against the church. After a state appeals court affirmed, the attorney moved to void the settlement. The motion was denied. Faced with contempt in state court, the attorney filed an involuntary motion to withdraw. A petition to the state supreme court remains pending. The federal district court denied the motion and ultimately enjoined the trial court from imposing sanctions, pursuant to the All Writs Act, 28 U.S.C. 1651(a). The Eleventh Circuit vacated, holding that, although the court was understandably concerned about the estate's ability to retain counsel, the injunction was not "necessary in aid of its jurisdiction," 28 U.S.C. 2283, and was issued in violation of the Anti-Injunction Act.