Justia Legal Ethics Opinion Summaries

Roger Elliott, who served as a district court judge for almost twenty-five years and who was a member of the Senior Status Judge Program, was indicted on one count of theft of labor already rendered. Elliott entered an Alford plea to the charge. The circuit court entered an order granting Elliott a pretrial diversion. The judicial conduct commission then issued an order of public reprimand. As a condition of the reprimand, Elliott agreed to resign from the judge program and not seek to re-enter it. As a follow-up to resolve the temporary suspension of his bar license, Elliott and the office of bar counsel agreed to a negotiated sanction. Elliott requested that the Supreme Court enter an order suspending him from the practice of law for two years with one year probated and one year to serve, effective from the date of the order, on conditions that Elliott continue compliance with the terms and provisions of his pretrial diversion contract and that he incur no new disciplinary charges during the probationary period. The Court concluded that the sanctions were appropriate.

A discovery dispute arose out of claims for legal malpractice and breach of fiduciary duty brought by Moreland/Manoogian, LLC and Tamsen Investments, LLC (collectively "M/M"). Richard Judd, Stephen Waters and their firm Robinson Waters & O'Dorisio, PC (RWO) represented M/M in a real estate development deal. Cedar Street Venture, LLC and M/M sought to solidify their partnership, but in the final phases of the deal, Cedar Street's attorney withdrew. RWO continued to represent M/M in the transaction but at times also advised and acted on behalf of Cedar Street. Because of these actions, Cedar Street viewed RWO as its attorney. Eventually the relationship between M/M and Cedar Street soured, and the parties went to arbitration to settle their differences. The basis of M/M and Cedar Street's complaints pertained to RWO's fees. During discovery, M/M sought RWO's financial records. RWO refused to turn them over. With minimal explanation, the trial court found that these documents were directly relevant to the case. In its holding, the Supreme Court took the opportunity to set the framework that trial courts should use when deciding on discovery requests that implicate the right to privacy: (1) the party requesting the information must prove the information is relevant to case; (2) the party opposing the request must show that the materials are confidential and will not otherwise be disclosed; (3) if the court determines there is a legitimate expectation of privacy in the materials, the requesting party must prove disclosure serves a compelling interest; and (4) if successful, the requesting party must show that the information is not available through other sources.

Barbara Roberts sued Steve Lanier and his firm Steve Lanier, PC, and Rodney Stallings and his firm Coggin & Stallings, LLC. In 2006, Ms. Roberts was arrested on murder charges and sent to the Cherokee County jail. She contacted Attorney Lanier, who then met with her and agreed to represent her in her criminal proceedings. The contract between them provided that Ms. Roberts would pay a "nonrefundable retainer" of $50,000. At that time, Ms. Roberts executed a power-of-attorney authorizing Mr. Lanier to withdraw the retainer from her bank accounts. Ms. Roberts testified at trial that she first learned that Mr. Lanier was not licensed to practice law in Alabama when she appeared for her first hearing at the district court. It was then that she was introduced to Mr. Stallings, who "associated" on her case. Seeing no need for two lawyers, she tried to terminate Mr. Lanier's representation. Mr. Stallings eventually managed Ms. Roberts' case, having all her mail sent to his office so that he could "oversee every aspect" of her personal life, including payment of all outstanding bills and expenses. Ms. Roberts alleged that instead of using her money for the purposes she intended, Mr. Stallings misappropriated approximately $100,000 of her funds. Ms. Roberts was eventually convicted of capital murder and sentenced to life without parole. She later learned that the "nonrefundable retainer" language in her contract with Mr. Lanier was unenforceable under Alabama law, and sued her former lawyers for legal malpractice. The circuit court granted summary judgment to the lawyers. Upon review, the Supreme Court reversed the circuit court's grant of summary judgment in favor of the lawyers only with respect to employment contract and the "nonrefundable retainer" and the misappropriation of Ms. Roberts' money for expenses while she awaited trial. The Court remanded the case for further proceedings.

Plaintiff, an attorney, was previously declared a vexatious litigant and was subject to a prefiling order issued under Code. Civ. Proc. 391, barring him "from filing any new litigation" in propria persona in a California court without leave of the court's presiding judge. The litigation stemmed from a fee-splitting dispute with another attorney. Plaintiff filed the present litigation through counsel, but lost his representation while the action was pending. On defendants' motions, the trial court dismissed plaintiff's complaint on the ground he had not complied with section 391.7 and the Court of Appeals reversed, holding that section 391.7 applied only to actions filed in propria persona be vexatious litigants. The court affirmed the Court of Appeals and held that, by its unambiguous terms, section 391.7, subdivision (a) authorized only a "prefiling" order prohibiting a vexatious litigant from "filing" new litigation without prior permission, and only when the litigant was unrepresented by counsel. Subdivision (c) of the section provided that the court clerk shall not "file" any such litigation without an order from the presiding judge permitting the "filing," and if the court clerk mistakenly "files" the litigation without such an order, the litigation was to be dismissed. Therefore, section 391.7's dismissal provision did not apply here because plaintiff was not in propria persona when he filed the litigation.

The Mississippi Commission on Judicial Performance filed a formal complaint against Walthall County Justice Court Judge Marion McKenzie for alleged ticket-fixing and for certain ex-parte communications. During a three-year period from January 2006 to January 2009, the Judge disposed of or attempted to dispose of nine citations for misdemeanor offenses. The offenses involved hunting over bait, failing to wear hunter orange, hunting without a license, and littering. On three occasions, the Judge attempted to intervene in cases assigned to another judge. On each occasion, the Judge obtained the violator's ticket and asked the deputy clerk to give the ticket to the citing officer so that the officer could "help" the defendant. The Judge acknowledged his wrongdoing and joined the motion for approval of a recommended public reprimand and $500 fine. After conducting its independent inquiry and giving consideration to the Commission's finding of fact, the Supreme Court ordered a thirty-day suspension from office without pay in addition to the recommended sanctions.

After receiving two letters from the law firm, the plaintiff filed suit claiming that the firm violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692e, by misleading him to believe that an attorney was involved in collecting his debt, and that the attorney could, and would, take legal action against him. The district court entered summary judgment in favor of plaintiff. The Third Circuit affirmed, finding that the "least sophisticated debtor" could conclude that an attorney, acting as an attorney, had reviewed his account and determined that he was a candidate for legal action. Disclaimers on the backs of the letters did not clarify that the firm was acting solely as a debt collector.

Plaintiff sued defendant, a county judge in Mississippi, under 42 U.S.C. 1983 for allegedly causing plaintiff to be prosecuted without probable cause. At issue was whether the district court properly denied defendant's motion, concluding that genuine issues of material fact precluded summary judgment. The court held that defendant was entitled to qualified immunity where the district court did not explain the constitutional right that he had purportedly violated and, under the circumstances of the case, plaintiff had not shown that defendant's actions tainted the deliberations of the magistrate who issued the arrest warrant or the grand jury that returned the indictment. The court also held that, because the appeal was resolved on grounds of qualified immunity, the court need not address whether defendant was entitled to judicial immunity. Accordingly, the court reversed the district court's denial of summary judgment.

James Tierney and Jeffrey Tierney brought an action against Four H Land Company and other defendants to compel them to lower the elevation of a lakeside housing development adjoining the Tierneys' land. The district court granted summary judgment in favor of the defendants, and the Tierneys appealed. While their appeal was pending the Tierneys discovered that the district court judge who issued the order harbored a personal prejudice against the Tierneys' attorney. The Supreme Court concluded that the three-factor test set forth in Liljeberg v. Health Services Acquisition Corp. is the best means of determining when the rulings of a judge who should have recused himself or herself will be vacated and adopted the test. Applying the Liljeberg test to the facts of the case, the Court concluded that the district court judge's order on the summary judgment motions should be vacated.

The Jicarilla Apache Nation's ("Tribe") reservation contained natural resources that were developed pursuant to statutes administered by the Interior Department and proceeds from these resources were held by the United States in trust for the Tribe. The Tribe filed a breach-of-trust action in the Court of Federal Claims ("CFC") seeking monetary damages for the Government's alleged mismanagement of the Tribe's trust funds in violation of 25 U.S.C. 161-162a and other laws. During discovery, the Tribe moved to compel production of certain documents and the Government agreed to the release of some documents but asserted that others were protected by, inter alia, the attorney-client privilege. At issue was whether the fiduciary exception to the attorney-client privilege applied to the general trust relationship between the United States and Indian tribes. The Court held that the fiduciary exception did not apply where the trust obligations of the United States to the Indian tribes were established and governed by statute rather than the common law and, in fulfilling its statutory duties, the Government acted not as a private trustee but pursuant to its sovereign interest in the execution of federal law. The reasons for the fiduciary exception, that the trustee had no independent interest in trust administration, and that the trustee was subject to a general common-law duty of disclosure, did not apply in this context. Accordingly, the Court reversed and remanded for further proceedings.

Donald McKinley and Christopher Villasana sued the Texas Attorney General seeking a declaratory judgment that Texas Penal Code 38.12(d)(2)(A) and 38.12(d)(2)(C) (collectively, "Barratry Statute"), violated the Texas and United States Constitutions. At issue was whether the district court erred when it failed to dismiss the state law claims on Eleventh Amendment grounds; whether the district court should have dismissed both McKinley's and Villasana's claims for lack of standing; and whether the Barratry Statute violated the United State's Constitution's First Amendment guarantee to free speech. The court dismissed the state law claims and held that the Eleventh Amendment barred suit where Greg Abbott was sued in his official capacity as Attorney General of the State of Texas for violations of the Texas Constitution. The court also held that, because Villasana was a resident of Harris County and had not alleged that he practiced outside of the counties affected by the injunction, his claims were dismissed as moot. The court held, however, that McKinley had standing where his actions might violate the Barratry Statute and he had also established the necessary causal link and redressability. Because the Barratry Statute regulated speech that was lawful and not misleading, the court used the three-prong inquiry set forth in Central Hudson and held that the Barratry Statute did not violate the First Amendment's guarantee of free speech.