Justia Legal Ethics Opinion Summaries

Jared Cortes-Gonzalez entered into a global disposition that required him to plead guilty in four felony cases, including two in which he faced complaints to revoke his probation. The plea agreement indicated that, while the sentences would be within the court’s discretion, the cumulative prison term would not exceed twenty years. Two weeks later, Cortes-Gonzalez filed a “Motion to Consider 35-C,” alleging that his attorney (the “public defender”) had provided ineffective assistance by failing to accurately advise him of the plea agreement’s potential punishment. In April 2021, alternate defense counsel submitted a supplemental Crim. P. 35(c) motion. The prosecution asked the district court to issue an order finding a “waiver of all confidential attorney-client privileges or relationships affected by the pursuit” of the Crim. P. 35(c) ineffective assistance claim. The court granted the motion, and the prosecution served an subpoena duces tecum (“SDT”) on the public defender to compel the production records in her possession related to Cortes-Gonzalez’s four cases. The public defender objected to the SDT. The issue presented to the Colorado Supreme Court in this case related to the attorney-client privilege in the context of ineffective assistance of counsel. The Supreme Court held: (1) whenever a defendant alleges ineffective assistance of counsel, the defendant automatically waives the attorney-client privilege, as well as any other confidentiality, between counsel and the defendant, but only with respect to the information that is related to the ineffective assistance claim; (2) the procedures set forth in Crim. P. 35(c)(3)(V) in no way modify section 18-1-417, C.R.S. (2021); (3) it is improper for prosecutors to request an order or use a Crim. P. 17 subpoena duces tecum (“SDT”) to attempt to access the confidential information covered by section 18-1-417(1); and (4) the prosecution doesn’t have an inherent right to an in camera review of the allegedly ineffective counsel’s case file - even if the purpose of the review is to ensure that all the information subject to the waiver will be produced. After any in camera review, the court must disclose to the prosecution claim-related information not previously produced. View "In re Colorado v. Cortes- Gonzalez" on Justia Law

Sigcho-Lopez, the alderman for Chicago’s 25th Ward, filed a complaint with the Illinois State Board of Elections, alleging that his predecessor’s (Solis) campaign committee unlawfully paid Solis's personal legal fees from campaign funds. The Board dismissed Sigcho-Lopez’s complaint. On administrative review, the appellate court affirmed the dismissal.The Illinois Supreme Court affirmed. Legal fees incurred to pay for a public official’s criminal defense against investigations or charges of public corruption do not amount to a per se prohibited personal debt under the plain language and spirit of Election Code section 9-8.10(a)(3); whether legal defense fees amount to a personal debt that does not defray the customary and reasonable expenses of an officeholder in connection with the performance of governmental and public service functions must be evaluated on a case-by-case basis. Solis was not indicted but worked with federal investigators using his official capacity to expose public corruption. Considering the evidence before the Board, its conclusion that Solis’s legal fees amounted to a proper expenditure not prohibited as “satisfaction or repayment” of personal debt but incurred “to defray the customary and reasonable expenses of an officeholder in connection with the performance of governmental and public service functions” was not clearly erroneous. View "Sigcho-Lopez v. Illinois State Board of Elections" on Justia Law

The Supreme Court suspended Respondent, Judge Paul M. Sushchyk, without pay for a reasonable time or until further order of this court for Respondent's non-consensual touching of a trial court employee and misconduct during an ensuing investigation, holding that a sanction was warranted.After an evidentiary hearing and the receipt of a hearing officer's report, the Commission on Judicial Conduct concluded that Respondent had engaged in an intentional and unwelcome touching of an employee while at a court-sponsored event and then providing inconsistent and knowingly false statements during the resulting investigation and hearing. The Supreme Court accepted the Commission's recommendation that Respondent by censured publicly and suspended without pay for a reasonable time to permit the executive and legislative branches to consider whether Respondent should retain his judicial office. View "In re Sushchyk" on Justia Law

The Court of Appeal reversed the trial court's denial of plaintiffs' motion for attorney fees, concluding that attorney fee awards against a holder are not capped if a separate state law so provides. The court explained that the term "recovery," as used in the Holder Rule provision, is sufficiently broad to include attorney fees. The court also concluded that Civil Code section 1459.5 is not preempted and plaintiffs are entitled to its benefit. In this case, there is no bar to application of section 1459.5 to the matter before the court even though it had not taken effect when the trial court initially ruled on plaintiffs' fee motion. The court further concluded that certain causes of action asserted by plaintiffs fall within the scope of section 1717 whereas others do not. Finally, plaintiffs waived the argument that section 2983.4 entitles them to an award of attorney fees by failing to raise it below in its motion for attorney fees. The court remanded to the trial court for further proceedings. View "Reyes v. Beneficial State Bank" on Justia Law

About seven weeks after the 2020 presidential election, Republican state legislators, individual voters, and organizations representing voters from Wisconsin, Arizona, Georgia, Michigan, and Pennsylvania—all states carried by Joseph R. Biden Jr.—sued to prevent Congress from certifying their states’ electoral results. The district court denied their motion to enjoin the counting of electoral votes, and, after the Senate certified Biden as the winner, the plaintiffs voluntarily dismissed their case. In a post-dismissal order cataloging the suit’s “numerous shortcomings,” the district court referred plaintiffs’ counsel, Kaardal, to the Committee on Grievances for possible discipline. “When any counsel seeks to target processes at the heart of our democracy,” the district court reasoned, “the Committee may well conclude that they are required to act with far more diligence and good faith than existed here.”The D.C. Circuit dismissed an appeal for lack of jurisdiction. The district court’s referral is not a final order. Rather than fixing Kaardal’s rights and liabilities, the challenged order merely initiated disciplinary proceedings. View "Wisconsin Voters Alliance v. Harris" on Justia Law

In 2020, the Ninth Circuit vacated the EPA’s conditional registrations for three dicamba-based herbicides as violating the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136n(b). The court found that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks. In a subsequent petition, seeking attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A), the plaintiffs in the underlying action argued that their requested attorneys’ fees should be calculated based on the market rates in San Francisco, where their petition for review was calendared for oral argument. Only one of their four attorneys is located in San Francisco. The other three are located in Portland.The Ninth Circuit disagreed. Where, as here, attorneys’ fees are incurred in connection with a petition for review in a court of appeals under FIFRA, the presumptive relevant community for calculating market rates is the legal community where counsel are located and where they do the bulk of their work. View "National Family Farm Coalition v. United States Environmental Protection Agency" on Justia Law

The Court of Appeal concluded that the trial court has discretion to deny attorney fees under the California Public Records Act (CPRA) in some circumstances and held that the minimal or insignificant standard is applicable when the requester obtains only partial relief under the CPRA. In this case, the Association contends the trial court erred in concluding it had no discretion under the CPRA to deny attorney fees. The court reversed and remanded for the trial court to exercise the discretion it believed it lacked. View "Riskin v. Downtown L.A. Property Owners Assn." on Justia Law

The Fifth Circuit affirmed the district court's denial of a preliminary injunction seeking to prohibit the Harris County District Attorney (DA) from enforcing a Texas anti-barratry law. The court concluded that plaintiff has not shown that his First Amendment claim is likely to succeed on the merits where the anti-barratry law is likely narrowly tailored to a compelling government interest in preventing confusion that damages relationships between appointed counsel and indigent defendants. The court declined plaintiff's request to assign the case to a different district judge on remand, concluding that this case does not merit reassignment under either of the two relevant tests. View "Willey v. Harris County District Attorney" on Justia Law

The Eighth Circuit reversed the district court's grant of summary judgment in favor of the law firm in a legal malpractice action brought by Gerber, alleging that the firm disclosed privileged documents. Applying the Restatement (Third) of the Law Governing Lawyers, the court concluded that Gerber will have to show that the attorneys' negligence led, in a natural and continuous sequence, to the extra fees paid, and that it would not have incurred the fees in the absence of the firm's negligence. Accordingly, the court remanded for further proceedings. The court also concluded that corrective fees are available, even without an underlying judgment. The court agreed with the district court that the action was not barred by the applicable statute of limitations. View "Gerber Products Co. v. Mitchell Williams Selig Gates & Woodyard, PLLC" on Justia Law

Bell, Hernandez, and Rayas, fraudulently promised victims that they could save their homes from foreclosure or lower their mortgage payments. They targeted monolingual Spanish‐speakers. They charged a $5,000-$10,000 "membership fee" and spent the fees on personal expenses. Their fraudulent entity never prevented a foreclosure. More than 60 homeowners joined, losing almost $260,000.Bell, Hernandez, and Rayas were charged with mail fraud, 18 U.S.C. 1341. Although Bell consistently refused legal representation, the district court assigned an experienced stand-by attorney. On the eve of trial, Bell moved to retain Joyce, who was newly admitted to the Illinois bar, had never tried a case, and had met Bell at the Metropolitan Correctional Center days earlier, at the behest of Eliades, co‐defendant Rayas’s counsel. Later, Eliades and Joyce denied that Eliades asked Joyce to visit Bell. Conflict attorneys from the Federal Public Defender’s Office discussed the situation with Bell and Rayas separately and held a conflict hearing for Hernandez. Rayas and Hernandez chose new attorneys. Bell insisted on Joyce, signing a waiver in which he acknowledged his right to conflict‐free counsel and the potential conflicts associated with Joyce.Convicted, Bell was sentenced to 150 months’ imprisonment and ordered to pay $259,211 in restitution. The Seventh Circuit affirmed. Bell’s waiver was knowing and voluntary; he has not demonstrated actual or serious potential for conflict that would have obliged the court to disregard his waiver. View "United States v. Bell" on Justia Law