Justia Legal Ethics Opinion Summaries

David Kosmann appealed a district court judgment relating to a dispute that arose from the sale of real property. He claimed the district court erred in enforcing an oral settlement agreement reached in mediation between Kosmann, Kevin Dinius, and Dinius & Associates, PLLC (collectively “Dinius”). Kosmann also argued the trial court erred in: (1) awarding attorney fees to Dinius as a sanction against Kosmann and his attorney; (2) declining to impose sanctions against Dinius and his attorney; and (3) striking an untimely memorandum and declaration in support of his motion to reconsider. After review of the trial court record, the Idaho Supreme Court affirmed in part and reversed in part. The Supreme Court determined the district court did not err in enforcing the settlement agreement; the court also did not err in declining to impose sanctions against Dinius on ethics violations. However, the Supreme Court determined the district court abused its discretion in imposing I.R.C.P. 11 sanctions against Kossman and his counsel: the district court did not act consistently with the applicable legal standard for imposing sanctions pursuant to I.R.C.P. 11(b). The Supreme Court declined to address all other issues Kossman raised, and determined he was not entitled to attorney fees on appeal. "The record in this case is so tarnished with questionable conduct that it has presented this Court with a vexing ethical and legal dilemma. While we are gravely concerned over the potential ethical lapses which allegedly occurred during the mediation of this matter, there are no findings in the record concerning these matters. Therefore, as the trial court determined, we will leave to the Idaho State Bar, if properly called upon, the responsibility to investigate this matter further and make the necessary findings and conclusions as to the ethical issues presented." View "Kosmann v. Dinius" on Justia Law

Judge Jesse Burton of the Southern District of Coahoma County, Mississippi Justice Court, filed an affidavit claiming his former girlfriend had stolen money and personal property from him. Based on this affidavit, another justice court judge issued an arrest warrant for Judge Burton’s girlfriend, Regina Burt. But before the warrant was served, Judge Burton changed his mind and instructed the clerk’s office to rescind the warrant that the other judge had issued. As directed, the deputy clerk replaced Judge Burton’s girlfriend’s name on the warrant with Jane Doe and instructed the sheriff’s office not to execute it. Acting on a complaint from Burt, on August 29, 2018, the Mississippi Commission on Judicial Performance filed a formal complaint against Judge Burton, who cooperated and entered an agreed stipulation of facts with the Commission: Judge Burton agreed he committed misconduct when he ordered a deputy clerk to rescind his former girlfriend’s arrest warrant, and agreed he violated Canons 1, 2A, 2B, 3B(1), 3B(2), and 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97- 11-1. The parties’ agreement included the Commission’s recommended sanction of a public reprimand and $500 fine. After review, the Mississippi Supreme Court agreed with the Commission’s findings and recommended sanction. View "Mississippi Commission on Judicial Performance v. Judge Jesse Burton" on Justia Law

David Calvert was disbarred for various ethical violations, including entering into an oral agreement with a client without complying with the requisite safeguards of Colorado Rule of Professional Conduct 1.8(a). After being disbarred, Calvert sued his former client, Diane Mayberry, for breach of that same oral agreement, claiming that there was a contract between them. The trial court granted Mayberry’s motion for summary judgment, and the court of appeals affirmed. On appeal to the Colorado Supreme Court, Calvert challenged: (1) whether an attorney who was found to have violated Rule 1.8(a) in a disciplinary proceeding was estopped from relitigating the same factual issues in a civil proceeding; (2) whether a contract between an attorney and a client entered into in violation of Rule 1.8(a) was enforceable; and (3) whether the trial court abused its discretion in awarding attorney’s fees against Calvert after finding his lawsuit groundless and frivolous. The Colorado Supreme Court declined the issue preclusion issue raised because Calvert conceded he could not relitigate whether he entered into an agreement with a client without meeting Rule 1.8(a)’s requirements. The Court held that when an attorney enters into a contract without complying with Rule 1.8(a), the contract was presumptively void as against public policy; however, a lawyer may rebut that presumption by showing that, under the circumstances, the contract does not contravene the public policy underlying Rule 1.8(a). Further, the Court held the trial court did not abuse its discretion in awarding attorney’s fees at the trial level because the record supported the finding that the case was groundless, frivolous, and brought in bad faith. But as to attorney’s fees at the appellate level, because the questions of whether issue preclusion applied in this proceeding and whether a contract made in violation of Rule 1.8(a) is void as against public policy were legitimately appealable issues, thereby making a grant of appellate attorney’s fees inappropriate. Therefore, the Supreme Court affirmed the court of appeals as to the merits on other grounds, affirmed the award of attorney’s fees at the trial level, and reversed the court of appeals’ order remanding for a determination of appellate attorney’s fees. View "Calvert v. Mayberry" on Justia Law

The Debtors filed their bankruptcy petition in 2008. Grusin provided them legal advice before the filing and at the beginning of the bankruptcy case. Fullen filed the petition and represented them in the chapter 7 case. In 2011, the bankruptcy court granted the Trustee summary judgment in an adversary proceeding seeking to deny the Debtors’ discharge and disqualified both lawyers from further representation of the Debtors in that case. The Debtors hired new counsel, who obtained relief from the summary judgment order. Following a trial, in 2015, the bankruptcy court again denied the Debtors’ discharge. The Bankruptcy Appellate Panel affirmed. In 2012, the bankruptcy court granted CJV derivative standing to pursue a malpractice action on behalf of the estate against Grusin and Fullen. Malpractice complaints were filed in the bankruptcy court and in Tennessee state court. In 2014, CJV filed another adversary proceeding, seeking declaratory relief that the malpractice claims constituted property of Debtors’ estate. The Bankruptcy Appellate Panel affirmed the bankruptcy court in holding that the malpractice action for denial of debtors’ discharges based on errors and omissions contained in a bankruptcy petition, as well as pre and post-petition legal advice, was not property of the debtors’ bankruptcy estate. There was no pre-petition injury; the Debtors were injured by that negligence when their discharges in bankruptcy were denied. View "In re Blasingame" on Justia Law

HSBC obtained a foreclosure judgment against the Lisses. To extend the time for appeal of that judgment, attorney Nora filed two bankruptcy petitions and multiple appeals, accusing HSBC and its attorney of federal crimes and seeking sanctions. The district court ultimately ordered Nora and her client to pay damages and costs related to the bankruptcy litigation and suspended her from the practice of law in the Western District of Wisconsin. The Seventh Circuit affirmed, noting that this was not Nora’s first encounter with attorney discipline. Nora’s attempt to relitigate HSBC’s foreclosure judgment in bankruptcy court was frivolous; her stall tactics were “blatant.” Such litigation behavior—even assuming pure motives—constitutes objective bad faith warranting sanctions under 28 U.S.C. 1927. The court noted “her serial dilatory, vexatious, and unprofessional litigation practices” and frivolous motion practice and legal arguments in her appeals. Flippant, unfounded accusations of misconduct and fraud by opposing counsel and court officials demean the profession and impair the orderly operation of the judicial system. View "Nora v. HSBC Bank USA, N.A." on Justia Law

In July 2012, Maguire, represented by attorney Bornstein, brought an unlawful detainer action against Connelly. In September 2012, Maguire voluntarily dismissed the unlawful detainer action. On September 16, 2014, Connelly sued Maguire and Bornstein for malicious prosecution, alleging the two “actively were involved in brin[g]ing and maintaining” the unlawful detainer action, which ended in appellant’s favor; “no reasonable person in [Maguire and Bornstein’s] circumstances would have believed that there were reasonable grounds” to bring and/or maintain the action; and Maguire and Bornstein “acted primarily for a purpose other than succeeding on the merits” of the action. The trial court dismissed, citing the one-year statute of limitations in Code of Civil Procedure section 340.6(a), governing “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.” The court of appeal affirmed, recognizing that finding section 340.6(a) applicable to malicious prosecution claims against attorneys will result in a one-year statute of limitations for such claims, while a two-year statute of limitations will apply to malicious prosecution claims against litigants. View "Connelly v. Bornstein" on Justia Law

Plaintiffs were all former members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (“FLDS”), which illegally practiced polygamy. In 2016, plaintiffs filed suit against the FLDS Prophet, Warren Jeffs, and Jeff’s lawyers, the law firm of Snow Christensen & Martineau (“SC&M”) and one of its partners, Rodney Parker, alleging defendants: (1) directly worked with Jeffs to create a legal framework that would shield him from the legal ramifications of child rape, forced labor, extortion, and the causing of emotional distress by separating families; (2) created an illusion of legality to bring about plaintiffs’ submission to these abuses and employed various legal instruments and judicial processes to knowingly facilitate the abuse; (3) held themselves out to be the lawyers of each FLDS member individually, thus creating a duty to them to disclose this illegal scheme; and (4) intentionally misused these attorney-client relationships to enable Jeffs’ dominion and criminal enterprise. Jeffs defaulted, and the district court dismissed every cause of action against the remaining defendants under Fed. R. Civ. P. 12(b)(6). The issue before the Tenth Circuit Court of Appeals stemmed from the district court’s dismissal of all claims against SC&M and Parker (collectively “defendants”). Reviewing the facts in the light most favorable to plaintiffs, the Court affirmed in part and reversed in part. For fifteen plaintiffs who brought legal malpractice and breach of fiduciary duty claims, the Court determined they pled facts sufficient to survive a motion to dismiss: a factual question remained for each of these plaintiffs regarding whether (and how long) equitable tolling applies to their limitations periods, and whether individual implied attorney-client relationships existed. Twelve plaintiffs pled facts sufficient to survive dismissal of their fraudulent and negligent misrepresentation claims, again, there was a factual question regarding when they discovered their claims, thereby starting the running of the statutory period, and whether an implied attorney-client relationship existed. Civil RICO claims were deemed forfeited as inadequately presented in plaintiffs’ opening brief. With respect to TVPRA claims, nine plaintiffs pled facts sufficient to pass muster under the plausibility standard and thus survived dismissal. View "Bistline v. Jeffs" on Justia Law

In 2005, Evangelos Dimitrakopoulos retained the law firm of Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C. ("Borrus firm"), for help with a business dispute with Steven Eleftheriou. Represented by the Borrus firm, Dimitrakopoulos and his wife filed a complaint against Eleftheriou and his wife. For undisclosed reasons, the Borrus firm filed a motion to withdraw as counsel shortly after it was retained. Days later, the Borrus firm filed a complaint against Dimitrakopoulos, alleging that its former client owed it $93,811.95 in fees for legal services and that payment had been demanded and not made. Dimitrakopoulos, acting pro se, filed an answer to the collection complaint but filed no counterclaim or third-party claim. In a proceeding before an arbitrator six months after the collection action was filed, the Dimitrakopouloses and the Eleftherious settled their dispute. In light of the settlement, the arbitrator did not issue an award. Months later, the court in the collection matter granted the Borrus firm’s unopposed motion for a final judgment by default in the amount of $121,947.99 for legal services, interest, attorneys’ fees, and court costs. Dimitrakopoulos did not appeal. A total of sixteen months elapsed between the filing of the Borrus firm’s collection action and the entry of the default judgment in that action. After the resolution of the business dispute between the Dimitrakopouloses and the Eleftherious, the collection action remained pending for an additional ten months. On September 10, 2015, approximately three years after the entry of judgment in the collection action, the Dimitrakopouloses sued the Borrus firm and the principal attorneys who worked on their matter for legal malpractice. Defendants moved to dismiss the complaint based on the "entire controversy" doctrine and the doctrine of waiver. The Dimitrakopouloses argued that the damages claimed in the malpractice action were known to them as of September 6, 2011, the day that they settled their dispute with the Eleftherious. The trial court concluded that the Dimitrakopouloses could have asserted their malpractice claim in the collection matter. An Appellate Division panel affirmed that judgment and stated that under Olds v. Donnelly, 150 N.J. 424 (1997), legal malpractice claims were exempt from the entire controversy doctrine to the extent that they need not be asserted in the underlying action. The New Jersey Supreme Court concluded the collection action at issue in this matter was not an “underlying action” as that term was used in Olds, and that the entire controversy doctrine could bar the claim. The record of this appeal, however, was inadequate for an application of the equitable rules that governed here. The Court therefore reversed the Appellate Division, and remanded the case for further proceedings. View "Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C." on Justia Law

In a judicial disciplinary proceeding, the Colorado Supreme Court considered the exceptions of now-former Colorado Court of Appeals Judge Laurie Booras to the Colorado Commission on Judicial Discipline’s (the “Commission’s”) recommendation that Judge Booras be removed from office and that she be ordered to pay the costs incurred by the Commission in this matter. The Commission’s recommendation was based on the factual findings and conclusions of law set forth in the December 12, 2018 Report of the Special Masters in this case. That report concluded that Judge Booras had violated Canon 1, Rule 1.2, Canon 3, Rule 3.1, and Canon 3, Rule 3.5 of the Colorado Code of Judicial Conduct by (1) disclosing confidential information belonging to the court of appeals (namely, the vote of a court of appeals division on a case prior to the issuance of the decision in that case) to an intimate, non-spousal partner and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a court of appeals colleague. Judge Booras filed exceptions to the Commission’s recommendation, contending that her communications with her then-intimate partner were protected by the First Amendment and that the recommendation that she be removed from office was too severe under the circumstances of this case. In addition, by letter dated January 2, 2019, Judge Booras advised the Chief Justice that she was resigning her position as a Colorado Court of Appeals Judge, effective as of the close of business on January 31, 2019, although no party contended Judge Booras’s resignation rendered this matter moot. Having now considered the record and the briefs of the parties, the Supreme Court concluded the Commission properly found Judge Booras’s communications with her then-intimate partner were not protected by the First Amendment. Furthermore, given Judge Booras’ resignation, which she tendered and which became effective after the Commission made its recommendation, the Court did not decide whether Judge Booras’s removal from office was an appropriate sanction. Rather, the Court concluded the appropriate sanction in this case was acceptance of Judge Booras’s resignation, the imposition of a public censure, and an order requiring Judge Booras to pay the Commission’s costs in this matter. View "In the Matter of Laurie A. Booras" on Justia Law

Jackson filed a pro se complaint against Kaiser under the California Fair Employment and Housing Act. After unsuccessfully attempting to serve the summons and complaint, Jackson sought counsel. Jackson never properly served Kaiser; Kaiser never appeared in the action. In April 2016, Jackson retained Horowitz to assist her “with regard to” the suit. Horowitz advised Jackson to dismiss her pending lawsuit without prejudice, believing that she could re-file by September 30, 2016. Although they apparently contemplated that Horowitz would prepare a new complaint, Jackson did not retain Horowitz as counsel of record. Jackson filed a Request for Dismissal prepared by Horowitz. On September 9, 2016, Horowitz informed Jackson that his advice had been based on his misunderstanding of the statute of limitations, which had expired on December 29, 2015, the date Jackson had filed her action. Jackson’s claims are now time-barred. Jackson retained Horowitz on a limited scope basis to represent her on an application seeking relief from the dismissal under Code of Civil Procedure 473(b). The court denied that application, stating that Horowitz’s erroneous advice could not serve as the basis for relief because he did not represent Jackson at the time and did not make an appearance in the case until October 2016, and section 473's mandatory relief provision did not apply to voluntary dismissal. The court of appeal affirmed. Although the order was appealable, section 473(b) mandatory relief is unavailable for this type of voluntary dismissal. View "Jackson v. Kaiser Foundation Hospitals" on Justia Law