Justia Legal Ethics Opinion Summaries

The Judicial Qualifications Commission (JQC) sought approval of the discipline by consent agreement between the Director of the JQC and JaDawnya Baker, Judge of the Municipal Court of Atlanta, to resolve the formal charges brought against Judge Baker with the issuance of a public reprimand. The agreement, entered into between the JQC Director and Judge Baker, was submitted to the JQC’s Hearing Panel, which approved the agreement and filed it with the Supreme Court for approval. Because Judge Baker’s admitted violations of periodically dismissing cases without the legal authority to do so justified the recommended, and agreed-to, discipline of a public reprimand, the Court approved the agreement. The Court approved the agreement with reservations "about whether, based on the substance of the allegations within the consent agreement, all of the agreed-to violations constitute violations of the Georgia Code of Judicial Conduct." View "Inquiry concerning Judge JaDawnya Baker" on Justia Law

Burkhart, the CEO of ASC, a private company that operates Indiana nursing homes and long-term care facilities, orchestrated an extensive conspiracy exploiting the company’s operations and business relationships for personal gain. Most of the funds involved in the scheme came from Medicare and Medicaid. After other defendants pled guilty and Burkhart’s brother agreed to testify against him, Burkhart pled guilty to conspiracy to commit mail, wire, and healthcare fraud (18 U.S.C. 1349); conspiracy to violate the AntiKickback Statute (18 U.S.C. 371); and money laundering (18 U.S.C. 1956(a)(1)(B)(i)). With a Guidelines range of 121-151 months, Burkhart was sentenced to 114 months’ imprisonment.Burkhart later filed a habeas action, contending that his defense counsel, Barnes & Thornburg provided constitutionally deficient representation because the firm also represented Health and Hospital Corporation of Marion County, a victim of the fraudulent scheme. The Seventh Circuit affirmed the denial of relief. While the firm labored under an actual conflict of interest, that conflict did not adversely affect Burkhart’s representation. Nothing in the record shows that the firm improperly shaded its advice to induce Burkhart to plead guilty; the advice reflected a reasonable response to the “dire circumstances” facing Burkhart. The evidence of Burkhart’s guilt was overwhelming. View "Burkhart v. United States" on Justia Law

The Court of Appeal affirmed the judgment following a jury's verdict finding the Attorney Defendants liable to plaintiffs for malicious prosecution. The trial court determined as a matter of law that the Attorney Defendants had no probable cause to maintain a lawsuit in which they represented defendant, Rosa Banuelos, and then the jury determined the Attorney Defendants acted with malice and awarded compensatory damages and punitive damages.The court concluded that the trial court correctly found that the Attorney Defendants had no probable cause to initiate or maintain the underlying action. In this case, a reasonable attorney would have known there was little to zero chance of prevailing in the litigation after losing on summary judgment, yet the Attorney Defendants pursued the case through an unsuccessful appeal. Furthermore, no reasonable attorney would have continued to prosecute a lawsuit with potential damages of only $4,000 and exposure to an award of attorney fees. The court also concluded that substantial evidence supported the jury's finding of malice and award of compensatory damages. Finally, the court concluded that the jury's award of punitive damages was not excessive as a matter of law. View "LA Investments, LLC v. Spix" on Justia Law

Objectors challenge, for the second time, the district court's award of attorney's fees in association with a class-action settlement. The underlying 2018 settlement resolved two multidistrict litigation (MDL) proceedings related to Lumber Liquidators's sale of defective laminate flooring products. Objectors now contest the district court's application of the Class Action Fairness Act (CAFA) and its use of the lodestar method in calculating the attorney's fees.The Fourth Circuit affirmed the attorney's fee order, concluding that it is satisfied that the district court correctly applied the relevant CAFA settlement provisions and did not abuse its discretion in approving the attorney's fee award as reasonable. The court agree with the prevailing interpretation of CAFA and thus approved the district court's determination that 28 U.S.C. 1712(b) allowed it to apply the lodestar method in this litigation. Especially in consideration of the district court's intimate familiarity with the litigation that proceeded before it and its unique advantage in determining the fee award is reasonable, the court approved of the district court's lodestar analysis and its assessment of the "success obtained" by class counsel. The court discerned no error in the district court's application of the CAFA "coupon" settlement provision and was satisfied that the attorney's fees order does not reflect an abuse of discretion. Finally, the court upheld the district court's award of fees in the amount of $10.08 million. View "Cantu-Guerrero v. Lumber Liquidators, Inc." on Justia Law

The Eighth Circuit affirmed the district court's reduction of SLF's request for an award of attorneys' fees. The court also affirmed the denial of SLF's motion to recuse, concluding that the unsupported and self-serving affidavit submitted by an SLF employee was not enough to leave the court with a definite and firm conviction that a mistake occurred. The court stated that recognizing SLF's practices for what they are—overbilling— does not call a judge's ability to render a fair judgment into question. The court rejected SLF's argument that the district court abused its discretion by excluding some of SLF's work from its fee calculation and imposing a 20% reduction on SLF's requested fees. Rather, SLF engaged in negotiating tactics that unreasonably extended the litigation, wasting the district court's time and resources. Therefore, the district court was entitled to reduce the lodestar calculation by considering appropriate factors, including unprofessional conduct. View "Oden v. Shane Smith Enterprises, Inc." on Justia Law

In May 2007, SunTrust hired Birch to perform a portfolio valuation on a property located in Indiana. The Birch report valued the property at $3.23 million. PNC Bank provided financing for the mortgage loan; both PNC and SunTrust accepted the report. In October 2007, the owner sold the property to a SunTrust affiliate subject to a $2.3 million loan PNC extended to SunTrust. The loan was later acquired by Regent. After consulting with independent appraisal experts, Regent hired a law firm and employed a certified appraiser, Potter, to evaluate the original Birch report. Potter’s report detailed several deficiencies in Birch’s 2007 appraisal.Regent filed a federal complaint, with state law claims, but soon moved to dismiss the complaint. Birch then filed its own lawsuit against Regent for malicious prosecution. Regent counterclaimed for attorney’s fees under the Indiana frivolous litigation statute. The district court dismissed both claims. The Seventh Circuit affirmed. Birch cannot establish the elements of a successful malicious-prosecution claim, but its lawsuit was not frivolous under Indiana law. Regent did not act maliciously in commencing the underlying action; it had probable cause based on advice from outside counsel, a detailed report by a certified appraiser, and justifiable reliance on the report. View "Birch Rea Partners, Inc. v. Regent Bank" on Justia Law

The Judicial Tenure Commission (JTC) filed a formal three-count complaint against Third Circuit Court Judge Bruce Morrow, arising from comments he made to two female prosecutors during a murder trial. An appointed master found respondent, in Counts I and II respondent had violated Canons 2(B), 3(A)(3), and 3(A)(14) of the Code of Judicial Conduct, and in Count III, the master found that respondent had violated Canons 3(A)(3) and 3(A)(14). The JTC issued a decision and recommendation for discipline in which it largely agreed with the master’s findings of fact and conclusions of law but found that respondent had also violated Canon 2(B) by his conduct in Count III. After determining that the majority of the factors set forth in In re Brown, 461 Mich 1291 (2000), weighed in favor of a more serious sanction, the JTC unanimously recommended that respondent be sanctioned with a public censure and a 12-month suspension without pay. Respondent petitioned the Michigan Supreme Court, requesting that the Court reject or modify the JTC’s recommendation. After review, the Supreme Court concluded the JTC correctly found that respondent committed misconduct in office and that public censure and suspension were appropriate. However, a 6-month rather than the JTC’s recommended 12-month suspension was proportionate. View "In Re Morrow " on Justia Law

Farnolo helped his clients file short‐form complaints in the multidistrict “Cook” litigation, involving product liability claims alleging injuries caused by Cook’s medical device—a filter designed to prevent pulmonary embolism. The case management order instructed all plaintiffs to complete a profile form with general personal and medical background information and details about their device and alleged injuries. In May 2019, the defendants notified attorney Farnolo that they did not have forms from his four clients. By late June, the forms still had not been filed. Farnolo never responded to the defendants' motion to dismiss.The district court dismissed the cases on July 19, 2019. Farnolo learned about the dismissal not by monitoring the docket, but from his client more than a year later. On August 18, 2020, he moved for reconsideration and reinstatement of the cases, claiming that he did not receive an electronic docket notification of the motion to dismiss; he attributed his delay in asking for reconsideration to his email inbox sending the dismissal order to his junk folder. The district court denied Farnolo’s motion as both untimely and meritless. The Seventh Circuit affirmed; all Rule 60(b) motions must be made within a “reasonable time” and Rule 60(c)(1) specifically requires requests for reconsideration predicated on excusable neglect to be brought within one year of entry of judgment. Inexcusable attorney negligence is not an exceptional circumstance justifying relief. View "Sides v. Cook Medical Inc." on Justia Law

Mark Shenefield filed a request for order (RFO) seeking joint legal and physical custody of the child he shared with Jennifer Shenefield. In his declaration, Mark quoted from and referenced the contents of a confidential, court-ordered psychological evaluation undertaken during Jennifer’s previous marital dissolution. Mark’s attorney Karolyn Kovtun filed the paperwork. Jennifer opposed Mark’s request and sought sanctions for violations of Family Code sections 3111(d) and 3025.5, for unwarranted disclosure of the confidential custody evaluation. The trial court ordered the sanctions issue be heard at trial. Jennifer’s trial brief detailed her arguments for why the court should impose sanctions on both Mark and Kovtun. Mark did not file a trial brief. Following trial, the court issued sanctions against Mark in the amount of $10,000 and Kovtun in the amount of $15,000. Kovtun challenged the sanctions, filing a motion under Code of Civil Procedure section 473(d). A different court heard Kovtun’s request to vacate the sanctions imposed against her and denied the request. On appeal, Kovtun argued the court improperly sanctioned her because: (1) attorneys could not be sanctioned under section 3111; (2) the notice she received did not comply with due process standards; (3) the court lacked personal jurisdiction over her; (4) the court failed to enforce the safe harbor provision of Code of Civil Procedure section 128.7; and (5) the court improperly admitted and relied on a transcript of a meeting between Kovtun, Mark, and Jennifer. The Court found Kovtun’s arguments meritless, and affirmed the sanctions. View "Shenefield v. Shenefield" on Justia Law

During the COVID-19 pandemic, the Federal Circuit issued administrative orders that prohibited public access to the National Courts Building. When the court resumed allowing counsel in the courthouse for argument in September 2021, it implemented protocols, including “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel” were permitted access. All persons entering the building had to complete Form 33C declaring under penalty of perjury that the individual was “scheduled to appear” and that the individual was either fully vaccinated for or received a negative test result for COVID-19 within 48 hours. Arguing counsel also completed Form 33A, certifying that “I am personally responsible for ensuring all individuals attending argument with me" will comply with the protocols.Attorneys unsuccessfully sought permission to bring additional attendees. On the day of their argument, four attorneys proceeded together to the courtroom. The clerk informed special counsel and a non-arguing partner that they could not be in the courtroom. They were escorted out. The attorneys argued that their non-compliance was not intentional and that it was not unreasonable for special counsel and the non-arguing partner to come to court to seek permission to attend the argument.The Federal Circuit did not impose discipline. The court noted that while there was no ambiguity in the instructions, the attorneys expressed earnest remorse, have not previously been accused of misconduct, and this situation has not arisen before. View "In Re Violation of the Revised Protocols for In-Person Arguments" on Justia Law