Justia Legal Ethics Opinion Summaries

The government moved to compel the testimony of an attorney who worked for the corporate body running the campaign for a former candidate for public office. The attorney sought to invoke the attorney-client privilege over his communications with the candidate and the campaign regarding the subject of the subpoena—certain financial disclosure forms filled out by the campaign and a number of purchases paid for by the campaign's bank accounts. The district court granted in part the government's motion to compel and denied the campaign's motion to quash.The Eleventh Circuit affirmed, concluding that the communications at issue fall within the crime-fraud exception to the attorney-client privilege. In this case, the court concluded that the government has presented a prima facie case of wire fraud and that the district court therefore did not abuse its discretion in finding that the government satisfied its burden under the first prong of the crime-fraud exception. Furthermore, after making the personal expenditures at issue, but before filing his financial disclosure forms, the candidate sought or obtained legal advice from the attorney regarding his obligations under Georgia law. Therefore, the communications at issue are sufficiently in furtherance of the crime of wire fraud to justify the piercing of the privilege. View "In re: Grand Jury Subpoena" on Justia Law

Plaintiff filed suit against McCullough for malicious prosecution. In 2018, the Court of Appeal reversed an order denying McCullough's anti-SLAPP motion and ordered the trial court to issue a fee award pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1). This appeal stems from the attorney fees award of $146,010 to McCullough.The Court of Appeal affirmed the trial court's attorney fee order, concluding that the trial court properly determined the reasonable market value of the attorneys' services. The court explained that the trial court has discretion to award an hourly rate under the lodestar method that exceeds the rate that was actually incurred or paid. In this case, the trial court properly determined that the market rate for experienced appellate lawyers in Los Angeles County and exercised its discretion to not so narrowly focus on the package rate agreed to in this matter. Furthermore, the court could not conclude, in these circumstances, that the award of attorney fees shocks the conscience or suggests that passion and prejudice had part in it. View "Pasternack v. McCullough" on Justia Law

In 2019, the television program CBS This Morning broadcast interviews with two women who accused Fairfax, the Lieutenant Governor of Virginia, of sexual assault. Fairfax had previously denied the allegations. Although he admitted that both sexual encounters occurred, he claimed they were entirely consensual. The CBS interviewer, Gayle King read from a statement Fairfax had given CBS denying the allegations. King directed viewers to Fairfax’s full statement on CBS’s website. Fairfax later issued a public letter to a North Carolina district attorney, alleging for the first time the existence of an eyewitness. Fairfax demanded that CBS retract the interviews, and CBS refused. Fairfax sued CBS for defamation and intentional infliction of emotional distress. The district court dismissed the complaint in its entirety but denied CBS’s motion for attorney’s fees and costs finding that CBS established its entitlement to statutory immunity under Virginia’s anti-SLAPP (strategic lawsuit against public participation) statute.The Fourth Circuit affirmed. Fairfax’s complaint fails to plausibly allege that CBS made the allegedly defamatory statements with knowledge or reckless disregard of their falsity, as required to state a claim for defamation of a public official. The fee-shifting statute is discretionary, not mandatory or presumptive. Fairfax’s allegations did not plausibly allege that CBS broadcast its This Morning programs despite entertaining “serious doubts as to the truth” of those broadcasts. View "Fairfax v. CBS Corp." on Justia Law

The Georgia Supreme Court granted certiorari to consider whether the Court of Appeals properly identified the accrual date of the legal malpractice claim in this case. The court determined that the accrual date for the malpractice action based on failure to protect an underinsured motorist (“UM”) claim was the date on which the plaintiff’s attorney first became aware that the plaintiff potentially had a UM claim with available coverage. Under the facts of this case, the Supreme Court disagreed, holding that the accrual date was the last day counsel could protect the client’s UM claim by lawfully effecting service on the UM carrier. View "Armstrong et al. v. Cuffie et al." on Justia Law

After plaintiff was injured from a slip and fall in a Home Depot parking lot, he filed suit against the store claiming that he sustained substantial injuries and alleging that his injuries required multiple surgeries, as well as physical and occupational therapy.The Seventh Circuit concluded that plaintiff's appeal is limited to the district court's denial of his second post-judgment motion filed under Rule 60(b). The court noted that, as a practical matter, that conclusion changes very little because plaintiff's appeal is all and only about whether the district court abused its discretion in dismissing his case for lack of prosecution. The court explained that the district court's denial of the Rule 60(b) motion effectively amounted to reinforcing and standing by its original dismissal decision. In this case, the court concluded that the district court acted well within its discretion dismissing plaintiff's suit where plaintiff's counsel missed many conferences. Because plaintiff chose counsel as his agent, he bears the consequences of counsel's actions. Accordingly, the court affirmed the district court's refusal to reopen the case. View "Krivak v. Home Depot U.S.A., Inc." on Justia Law

After wrecking his car while intoxicated, Ziegler falsely, unsuccessfully claimed to be an Assistant U.S. Attorney in an attempt to avoid charges and retrieve his impounded car. He made those claims to deputies, the magistrate judge, and the towing company. In his prosecution for impersonating a federal officer, 18 U.S.C. 912.1, Ziegler, though not a lawyer waived his right to counsel and represented himself.The Fourth Circuit affirmed his conviction, rejecting Ziegler’s claims that the court erred in permitting Ziegler to represent himself because he was incapable of doing so and failed to make necessary inquiries into his mental competency and that the evidence does not show that he “acted” as a federal officer. The district judge thoughtfully evaluated Ziegler’s request to represent himself. The public defender, initially appointed to Ziegler’s case, said that he did not “have any questions with [Ziegler’s] legal competency” based on Ziegler’s “base of experience.” The court repeatedly counseled Ziegler that he should allow the public defender to represent him. Ziegler claimed to be an Assistant U.S. Attorney and told police officers that, as a result of this position, the officers lacked jurisdiction over him, the charges would get dismissed, and he did not need a license. This is a sufficient show of authority to “act” as an official. View "United States v. Ziegler" on Justia Law

Brace, a farmer, owns hundreds of acres in Erie County, Pennsylvania. He cleared 30 acres of wetlands, draining it to grow crops. In 1994, the Third Circuit affirmed that Brace had violated the Clean Water Act. In 2012, Brade bought 14 additional acres of wetlands. Again, he engaged in clearing, excavation, and filling without required permits. During a second suit under the Act, Brace’s counsel submitted perfunctory pleadings and failed to cooperate in discovery, repeatedly extending and missing deadlines. Counsel submitted over-length briefs smuggling in extra-record materials. The court repeatedly struck Brace’s materials but generally chose leniency. Eventually, the court struck Brace’s opposition to summary judgment after analyzing the “Poulis factors,” then granted the government summary judgment on liability, holding that Brace had violated the Act. The court ordered Brace to submit a proposed deed restriction and restoration plan.The Third Circuit rejected Brace’s appeal. While “it stretches credulity [to believe that Brace had] no idea how counsel [wa]s conducting this case,” the court gave Brace the benefit of the doubt. Brace’s lawyer’s misconduct forced the government to waste time and money “deciphering incomprehensible pleadings, scouring through noncompliant briefs, and moving again and again for compliance" to no avail. Counsel acted in bad faith; repeated orders to show cause, warnings, and threats of sanctions did not deter counsel’s chronic misbehavior. The sanction “was hardly an abuse of discretion.” View "United States v. Brace" on Justia Law

The Supreme Court ordered that Respondent, C. Randy Pool, a Judge of the General Court of Justice, District Court Division, Judicial District 29A, be censured for conduct in violation of Canons 1, 2A, 2B, 3A(4), and 3A(5) of the North Carolina Code of Judicial Conduct and pursuant to N.C. Gen. Stat. 7A-376(b) for conduct prejudicial to the administration of justice that brings the judicial office into disrepute.The Judicial Standards Commission filed a Recommendation of Judicial Discipline recommending that Respondent be censured for sexual misconduct. The Supreme Court concluded that the Commission's findings of fact were supported by clear and convincing evidence and that the Commission's conclusions of law were supported by those facts. The Court then ordered that Respondent be censured. View "In re Pool" on Justia Law

The Law Offices of Jeffrey Sherbow, PC, brought an action against Fieger & Fieger, PC (the Fieger firm), asserting that the Fieger firm breached its referral- fee contract with plaintiff when the Fieger firm refused to pay plaintiff 20% of a contingent fee that the Fieger firm had received after it successfully represented several clients in a personal- injury and no-fault action related to an automobile accident in Ohio. The primary question in this case was whether, in order to enforce a fee- splitting agreement, MRPC 1.5(e) required the referring attorney to have an attorney-client relationship with the individual he or she refers. The Michigan Supreme Court held that it does but that the relationship could be limited to the act of advising the individual to seek the services of the other attorney if the referring attorney and client expressly or impliedly demonstrate their intent to enter into a professional relationship for this purpose. Consequently, the Court reversed the Court of Appeals’ judgment to the extent that it held to the contrary. The Supreme Court agreed with the appellate court, however, that the defendant bore the burden of proving noncompliance with MRPC 1.5(e) when the defendant raised the violation of the rule as a defense against enforcement of the referral agreement. The result in this case was that the trial court properly instructed the jury that an attorney-client relationship was required but erroneously instructed the jury about the burden of proof. This error required a new trial as to only one of the potential clients at issue. View "Law Offices of Jeffrey Sherbow v. Fieger & Fieger, PC" on Justia Law

Cameron filed a Notice of Disagreement (NOD) on behalf of an Army veteran in August 2005. The VA denied Cameron attorney’s fees under 38 C.F.R. 14.636(c), which permits an attorney to charge fees for services provided before a final Board decision only where a NOD was filed on or after June 20, 2007. Before the law was amended, attorneys representing veterans in veterans’ benefits cases before the VA were prohibited from charging fees for services provided before a final Board decision.The Veterans Court and the Federal Circuit affirmed the denial, holding that section 14.636(c) is consistent with its authorizing statute, 38 U.S.C. 5904. Congress considered eliminating all fee restrictions under section 5904(c)(1) by repealing subsection (c)(1) entirely but made a legislative choice between the competing purposes of liberalizing the availability of attorney’s fees and avoiding disruption to the veterans’ benefits system, and “adopted a delayed and staggered effective date . . . [to] allow a deliberate and gradual implementation of these policies in order to minimize any disruption to the VA system.” In denying Cameron attorney’s fees, the VA has done no more than give effect to that legislative choice. View "Cameron v. McDonough" on Justia Law