Justia Legal Ethics Opinion Summaries

For many years, attorney Conn obtained social security benefits for his clients by submitting fraudulent reports and bribing an Administrative Law Judge. After the government discovered this fraud, the SSA decided to redetermine whether each of Conn’s 1,500 claimants was actually eligible for disability benefits. The SSA held hearings and allowed the claimants to submit evidence but categorically excluded medical reports created by the doctors with whom Conn had conspired because it had “reason to believe” fraud was involved in the creation of the reports (42 U.S.C. 1383(e)(7)(A)(ii))). The claimants were not permitted to challenge that finding. After the denials of their claims, 57 plaintiffs filed suit.The Sixth Circuit held that the exclusion of the reports violated the Due Process Clause and the APA. On remand, the district courts concluded that remand to the SSA was proper because “the Commissioner erred in some respect in reaching the decision to deny benefits.”The Sixth Circuit affirmed the subsequent denial of the plaintiffs’ motions for attorney’s fees under the Equal Access to Justice Act. The government’s position in the litigation was “substantially justified,” in light of the precedent cited by the government, the rationale for the decision, and the fact that district courts across the country have split on this issue. The case involved numerous issues of first impression. Despite the fact that the government’s arguments were rejected, a reasonable person could have believed them to be correct. View "Wireman v. Commissioner of Social Security" on Justia Law

At issue in this appeal was whether the arbitration provision in the retainer agreement plaintiff Brian Delaney signed when he engaged the representation of Sills Cummis & Gross P.C. was enforceable in light of the fiduciary responsibility that lawyers owe their clients and the professional obligations imposed on attorneys by the Rules of Professional Conduct (RPCs). In 2015, Delaney, a sophisticated businessman, retained Sills to represent him in a lawsuit. He met with a Sills attorney who presented him with a four-page retainer agreement. It was understood that Trent Dickey was slated to be the attorney primarily responsible for representing Delaney reviewed and signed the retainer agreement in the presence of the Sills attorney without asking any questions. After the representation was terminated, a fee dispute arose and, in August 2016, Sills invoked the JAMS arbitration provision in the retainer agreement. While the arbitration was ongoing, Delaney filed a legal malpractice action against Dickey and the Sills firm. The complaint alleged that Dickey and Sills negligently represented him. The complaint also alleged that the mandatory arbitration provision in the retainer agreement violated the Rules of Professional Conduct and wrongly deprived him of his constitutional right to have a jury decide his legal malpractice action. The trial court held that the retainer agreement’s arbitration provision was valid and enforceable. Additionally, the court determined that Delaney waived his right to trial by jury by agreeing to the unambiguously stated arbitration provision. The Appellate Division disagreed, stressing that Sills should have provided the thirty-three pages of JAMS arbitration rules incorporated into the agreement, that Sills did not explain the costs associated with arbitration, and that the retainer included a fee-shifting provision not permissible under New Jersey law. The New Jersey Supreme Court held that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. "Delaney must be allowed to proceed with his malpractice action in the Law Division. We affirm and modify the judgment of the Appellate Division and remand to the Law Division" for further proceedings. View "Delaney v. Dickey" on Justia Law

The Court of Appeal affirmed the trial court's award of attorney's fees to plaintiff after a jury trial on plaintiff's lemon law claims. HNL argued that plaintiff's counsel failed to provide evidence of their hourly rates, (2) the trial court erred in refusing to apportion attorney's fees, (3) the trial court erred in applying a lodestar multiplier, and (4) TD was not liable for attorney's fees under title 16, section 433.2 of the Code of Federal Regulations (2020) (the Holder Rule).The court upheld the amount of attorney's fees award, finding no abuse of discretion. The court explained that substantial evidence supported the Lodestar amount; there was no abuse of discretion in refusing to apportion the fee award; and there was no abuse of discretion applying a Lodestar multiplier. The court also upheld the trial court's ruling that TD is liable for attorney's fees, and concluded that the Holder Rule does not limit the attorney's fees that a plaintiff may recover from a creditor-assignee. View "Pulliam v. HNL Automotive Inc." on Justia Law

The Court of Appeal affirmed the trial court's award of attorney fees in favor of plaintiff, holding that defendants are entitled to fees under the note and deed of the trust. The court rejected plaintiff's contention that Civil Code section 1717 does not apply because his negligence and fraud claims do not refer to or rely on the existence of a contract. In this case, the court found no error in the trial court's conclusion that plaintiff's tort claims "directly relate to enforcement of the note through foreclosure." The court explained that, at its core, plaintiff's suit sought to avoid his obligations under the note by making claims defendants acted negligently and fraudulently during the foreclosure process. The court also concluded that the trial court did not abuse its discretion in awarding fees under Code of Civil Procedure 2033.420. View "Yoon v. CAM IX Trust" on Justia Law

Judge F. Stanton Hardee, III was elected judge for the Kaplan City Court in Vermillion Parish, Louisiana, and took office in 2015. In January 2017, Judge Hardee attended a bachelor party in Park City, Utah celebrating his upcoming wedding. He visited a local bar and consumed excessive amounts of alcohol, becoming extremely intoxicated. It was undisputed that he grabbed the buttocks of a waitress without her consent. Park City Police were called, he did not immediately produce identification, and he failed to cooperate with police at the scene. Judge Hardee was charged with multiple misdemeanors under Utah law: (1) Sexual Battery; (2) Failure to Disclose Identity; (3) Interference with Arresting Officer; and (4) Intoxication. He pled no contest to these charges and fully satisfied all terms and conditions of the plea. As a part-time city court judge, Judge Hardee was allowed to practice law. Consequently, he was subject to the jurisdiction of the Office of Disciplinary Counsel (ODC), which regulated attorneys. In November 2018, a joint petition for consent discipline was filed by Judge Hardee and the ODC. The court approved the requested consent discipline, which included a five-year JLAP monitoring agreement that began December 5, 2017. The consent discipline resulted in Judge Hardee being suspended from the practice of law for one year with all but six months deferred, followed by probation coinciding with the remainder of his JLAP monitoring agreement. If successfully completed, JLAP monitoring would end December 5, 2022. The Louisiana Supreme Court adopted the Commission’s recommendation, except for the length of monitoring by the Judges and Lawyers Assistance Program (JLAP): the Court required Judge Hardee to successfully complete the five-year JLAP monitoring agreement executed on December 5, 2017. View "In re: F. Stanton Hardee, III" on Justia Law

In 2008, the Blasingames met with attorneys Fullen and Grusin to discuss their financial situation and signed engagement agreements. The Blasingames filed a Chapter 7 bankruptcy petition with Fullen as the attorney of record. Fullen constructed the bankruptcy schedules, obtaining the Blasingames’ financial information from Grusin. The Blasingames claimed less than $6,000 in assets. The bankruptcy court later found the Blasingames failed to disclose millions of dollars in assets that they controlled through a complex web of family trusts, shell companies, and shifting “clearing accounts.”In 2011, the bankruptcy court granted the Trustee summary judgment, denying the Blasingames’ discharge and disqualified the attorneys from further representation of the Blasingames. Although the Blasingames’ new counsel was able to obtain relief from the summary judgment order, their discharge was again denied in 2015. The Bankruptcy Appellate Panel (BAP) affirmed.A major creditor, CJV1, obtained derivative standing from the bankruptcy court to file a malpractice claim against the filing attorneys on behalf of the estate. CJV, in the bankruptcy court, and the Blasingames, in Tennessee state court, filed malpractice complaints. The bankruptcy court refused to approve the Blasingames’ settlement with the attorneys; the BAP and Sixth Circuit dismissed the Blasingame’s appeal for lack of jurisdiction. CJV asserted that the malpractice claims are property of the bankruptcy estate. The bankruptcy court, the BAP, and the Sixth Circuit ruled in favor of the Blasingames. Under Tennessee law, the legal malpractice claims accrued arose post-petition. View "Church Joint Venture, L.P. v. Blasingame" on Justia Law

Rembert, a nurse, routinely worked more than 40 hours per week for A Plus but did not receive overtime. Rembert filed a purported class action under the Fair Labor Standards Act (FLSA). The Department of Labor investigated. The court certified a class and ordered A-Plus to provide a list of persons potentially fitting within the class. The deadline passed. A magistrate scheduled a phone conference; defense counsel failed to appear. A Plus provided responsive information about five weeks after the deadline. The parties began discovery, which was notable for defense counsel’s repeated failure to comply. Rembert’s counsel finally filed a motion to compel. The magistrate granted the motion and ordered A Plus to pay “reasonable attorneys’ fees and costs.” Defense counsel failed to respond. Rembert filed another motion. As a result of the DOL investigation, some class members received full payment of the amounts owed to them. The parties ultimately agreed to the entry of judgment in favor of Rembert and the remaining class members, $18,961.Rembert moved for an award of fees and costs under the FLSA, 29 U.S.C. 216(b). Her lawyers requested hourly rates of $350 and $300, respectively, and submitted detailed records for 21.2 hours of work for the motion to compel and 98.7 hours on the remainder of the case. The court approved the rates but reduced counsel’s total compensable hours to 46.2 and cut the fee award an additional $1,660. The Sixth Circuit reversed. The plaintiffs obtained 100% of the recovery due to them. The court did not explain which hours it rejected and apparently did not consider the impact of delays caused by defense counsel. The court remanded with instructions to grant the petition for fees and costs in the amount of $38,765.00. View "Rembert v. A Plus Home Health Care Agency, LLC" on Justia Law

In 2016, Hill pleaded no contest to felony possession of a firearm by a convicted felon (case CR940896). The court suspended imposition of sentence and placed Hill on three years' felony probation. In 2019, a Clearlake police officer noticed Hill outside of a liquor store, approached, obtained Hill’s name, and conducted a records check, which revealed that Hill was on postrelease community supervision. As the officer returned, Hill “produced” a knife and placed it on a pole. Hill said he needed the knife “for protection” and that he had it shoved down his sleeve. Hill pleaded no contest to concealing a dirk or dagger (case CR953084) and admitted a probation violation in case CR940896. The plea was open with a maximum possible sentence of 32t months.The trial court revoked his probation in case CR940896 and sentenced Hill in both cases to an aggregate term of 32 months. The court of appeal affirmed, rejecting Hill’s argument that his attorney was ineffective for failing to request a hearing on his eligibility for mental health diversion under Penal Code section 1001.36. Because Hill’s appeal did not attack the validity of his plea but challenged the court’s sentencing discretion relating to section 1001.36, no certificate of probable cause was required. Hill's counsel was not deficient in failing to request an eligibility hearing nor was Hill prejudiced by counsel’s failure to do so. View "People v. Hill" on Justia Law

In 2005-2007, Merchant purchased Michigan hotel properties from NRB and financed the purchases through NRB, using corporate entities as the buyers. Merchant sold interests in those entities to investors. The hotels had been appraised at inflated amounts and sold for about twice their fair values. When the corporate entities defaulted on their loan payments, NRB foreclosed in 2009. Merchant claimed that NRB’s executives colluded with an appraiser to sell overvalued real estate to unsuspecting purchasers, wait for default, foreclose, and then repeat the process.In 2010, an investor sued Merchant, Merchant’s companies, NRB, and 12 others for investor fraud. In 2014 the FDIC took NRB into receivership and substituted for NRB as a defendant. Merchant and his companies brought a cross-complaint, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and state laws. A Fifth Amended Cross-Complaint raised 14 counts against 10 defendants, including two law firms that provided NRB’s legal work. The district court dismissed several counts; others remain active.The Seventh Circuit affirmed the dismissal of claims against the law firms. The counts under state law are untimely under Illinois’s statute of repose. The cross-complaint effectively admits that one firm played no role in NRB’s alleged fraud perpetrated against Merchant in 2005-2007. The cross-complaint failed to allege that either law firm conducted or participated in the activities of a RICO enterprise; neither firm could be liable under 18 U.S.C. 1962(c). View "Muskegan Hotels, LLC v. Patel" on Justia Law

James-Cornelius sought compensation under the National Vaccine Injury Compensation Program, alleging that her 17-year-old son, E.J., had suffered dysautonomia, postural orthostatic tachycardia syndrome (POTS), and other symptoms as a result of receiving three shots of the HPV vaccine, Gardasil®. While there are no records of medical visits between his first and second vaccinations, the records document his medical visits, symptoms, and diagnoses after his third vaccination. The petition identified medical articles hypothesizing that HPV vaccines can cause dysautonomia and POTS and alleged that the increasing severity of his symptoms is “evidence of re-challenge” and that the pattern of worsening reactions is “strongly probative of a causal relationship” between the vaccine and E.J.’s symptoms, some of which were listed as potential Gardasil® side effects.James-Cornelius unsuccessfully attempted to obtain medical records relating to urgent care visits that she believed occurred before E.J.’s second vaccination. She eventually dismissed her petition, explaining that “she [would] likely be unable to prove" entitlement to compensation. James-Cornelius sought $17,111.12 in attorneys’ fees and costs under 42 U.S.C. 300aa-15(e)(1), asserting that she had filed her petition in good faith and with a reasonable basis. . The Federal Circuit vacated the denial of the petition. The Special Master failed to consider relevant objective evidence. E.J.’s medical records support for James-Cornelius’s reasonable basis claim even without an express medical opinion on causation. The Special Master erroneously concluded that petitioners’ affidavits are categorically “not ‘objective" for evaluating reasonable basis. View "James-Cornelius v. Secretary of Health and Human Services" on Justia Law