Justia Legal Ethics Opinion Summaries

In this original proceeding, the issues presented for the Court of Appeal’s review related to a confidential attorney-client communication. The trial court found that plaintiff and real party in interest Richard Hausman, Sr. (Dick), did not waive the attorney-client privilege by forwarding a confidential e-mail he received from his personal attorney to his sister-in-law because Dick inadvertently and unknowingly forwarded the e-mail from his iPhone, and therefore lacked the necessary intent to waive the privilege. The trial court also impliedly found that Dick’s sister-in-law did not waive the privilege when she forwarded the e-mail to her husband, who then shared it with four other individuals, because neither Dick’s sister-in-law nor his brother-in-law could waive Dick’s attorney-client privilege, and Dick did not consent to these additional disclosures because he did not know about either his initial disclosure or these additional disclosures until a year after they occurred. In a separate order, the trial court disqualified Gibson, Dunn & Crutcher LLP (Gibson Dunn) from representing defendants-petitioners McDermott Will & Emery LLP and Jonathan Lurie (collectively, Defendants) in the underlying lawsuits because Gibson Dunn failed to recognize the potentially privileged nature of the e-mail after receiving a copy from Lurie, and then analyzed and used the e-mail despite Dick’s objection that the e-mail was an inadvertently disclosed privileged document. The Court of Appeal denied the petition in its entirety. Substantial evidence supported the trial court’s orders and the court did not abuse its discretion in selecting disqualification as the appropriate remedy to address Gibson Dunn’s involvement in this matter. “[R]egardless of how the attorney obtained the documents, whenever a reasonably competent attorney would conclude the documents obviously or clearly appear to be privileged and it is reasonably apparent they were inadvertently disclosed, the State Fund rule requires the attorney to review the documents no more than necessary to determine whether they are privileged, notify the privilege holder the attorney has documents that appear to be privileged, and refrain from using the documents until the parties or the court resolves any dispute about their privileged nature. The receiving attorney’s reasonable belief the privilege holder waived the privilege or an exception to the privilege applies does not vitiate the attorney’s State Fund duties.” View "McDermott Will & Emery v. Super. Ct." on Justia Law

Judge Richard Hagar of the North Central Judicial District filed exceptions to the Judicial Conduct Commission's recommended findings that he violated provisions of the Code of Judicial Conduct by failing to diligently and promptly decide judicial matters assigned to him and by failing to work with the presiding judge. He also objected to the Commission's recommended sanction. After review, the North Dakota Supreme Court concluded there was clear and convincing evidence Judge Hagar violated N.D. Code Jud. Conduct Rules 2.5 and 2.7. The Court ordered that Judge Hagar be suspended from his position as district court judge for three months without pay and that he be assessed $10,118.67 for the costs and expenses of the disciplinary proceedings. View "Judicial Conduct Commission v. Hagar" on Justia Law

Following a disciplinary sanction, a judge was not recommended for retention by the Alaska Judicial Council. Although the judge chose not to campaign, an independent group supported his retention and campaigned on his behalf. After the election the Alaska Commission on Judicial Conduct filed a disciplinary complaint against the judge and later imposed an informal private admonishment on the judge because he did not publicly address allegedly misleading statements made by the independent group. Because the statements clearly originated with the independent group rather than the judge, and the judge had no knowledge of one statement, the judge had no duty to publicly address any of the statements. Accordingly, we reverse the Commission’s admonishment and dismissed the Commission’s complaint against the judge. View "In Re District Court Judge" on Justia Law

In 2008, Kimberly Bond sued her former attorney, James McLaughlin, alleging legal malpractice. The trial court entered a summary judgment in favor of McLaughlin. In February 2006, Bond hired McLaughlin to provide legal services involving the estate of her husband, Kenneth Pylant II, who was killed in a motorcycle accident in 2005. McLaughlin allegedly failed to properly contest a copy of Pylant's will that was admitted to probate on November 29, 2005, and, as a proximate result of McLaughlin's breach of duty, Bond was injured and suffered damage. The Supreme Court found that Bond did not contest the will before probate, and, because of McLaughlin's negligence, she did not properly contest the will within six months after probate by filing a complaint with the circuit court. The Supreme Court determined that Bond presented evidence sufficient to overcome summary judgment, and accordingly reversed the circuit court’s order. The case was remanded for further proceedings. View "Bond v. McLaughlin" on Justia Law

The South Carolina Supreme Court accepted this declaratory judgment action in its original jurisdiction to determine whether Community Management Group, LLC; its president, Stephen Peck; and its employee, Tom Moore, engaged in the unauthorized practice of law while managing homeowners' associations. Community Management Group managed homeowners' associations and condominium associations in Charleston, Dorchester, and Berkeley Counties. Until the Supreme Court issued a temporary injunction in connection with this case, when a homeowner in an association did not pay an overdue assessment, Community Management Group (without the involvement of an attorney) prepared and recorded a notice of lien and related documents; brought an action in magistrate's court to collect the debt; and after obtaining a judgment in magistrate's court, filed the judgment in circuit court. Community Management Group also advertised that it could perform these services. After review, the Supreme Court found Community Management Group engaged in the unauthorized practice of law. View "Rogers Townsend & Thomas, PC v. Peck" on Justia Law

DeWayne Johnston, individually, and as registered agent of Johnston Law Office, P.C., appealed the invalidation of a notice of attorney lien recorded against Johnston's former client and ordering Johnston Law Office and Johnston, individually, to pay $1,330 in costs and attorney fees. Wayne and Janel Nusviken acquired real property from Johnston's former client Barbara McDermott on October 2, 2013. On October 8, 2013, Johnston recorded a "notice of attorney lien" against McDermott. The notice of attorney lien included the legal description of Nusviken's property and stated McDermott owed Johnston nearly $66,000 in attorney's fees relating to Johnston's representation of McDermott in earlier matters unrelated to the sale of the property. The Nusvikens petitioned the district court to invalidate the notice of attorney lien, arguing McDermott no longer owned any interest in the property. The court issued an order to show cause directing Johnston to appear and show why the notice of attorney lien should not be declared void. At the hearing, Johnston argued the notice of attorney lien was not a nonconsensual common-law lien but a valid attorney's lien under N.D.C.C. § 35-20-08, and therefore, the court did not have jurisdiction to invalidate the lien. In response Nusviken's attorney stated the notice of attorney lien was invalid because McDermott no longer had an interest in the property and no attorney-client relationship existed between Johnston and the Nusvikens. The court concluded the purported lien was a nonconsensual common-law lien and not a valid attorney's lien because it failed to satisfy the statutory requirements for an attorney's lien. After review, the Supreme Court modified the judgment to relieve Johnston of personal liability and affirmed the judgment as modified. View "Nusviken v. Johnston" on Justia Law

Acting pro se, Clay Jones sued his former attorney, Alan Whisenand, for legal malpractice and civil rights violations allegedly committed in the course of civil commitment proceedings under the Sexually Violent Predator Act (SVPA). The trial court sustained Whisenand’s demurrer to the first amended complaint without leave to amend on the grounds that: (1) Jones failed to allege actual innocence of all charges in the underlying criminal case or post-conviction exoneration; and (2) Jones failed to show that Whisenand was a “state actor” acting “under color of state law.” After review, the Court of Appeal concluded that the actual innocence requirement did not apply to SVPA proceedings. However, public policy considerations underlying the actual innocence requirement (namely, judicial economy and the desire to avoid conflicting resolutions) compelled the conclusion that alleged SVPs should not be able to pursue causes of action for legal malpractice in the course of their SVPA proceedings unless and until such proceedings have been terminated in their favor. "[O]ur conclusion does not leave alleged SVPs without a remedy while proceedings are ongoing, as they may still seek relief for ineffective assistance of counsel in the SVPA proceedings themselves. Jones does not, and cannot, allege that the pending SVPA proceedings have been terminated in his favor. We therefore conclude the trial court properly sustained Whisenand’s demurrer to Jones’s cause of action for legal malpractice." The SVPA proceedings against Jones were still pending, raising the possibility that he might be able to comply with the favorable termination requirement in the future. Accordingly, the Court concluded the demurrer should have been sustained with leave to amend. With respect to his civil rights claim, the Court concluded the trial court properly sustained the demurrer without leave to amend. View "Jones v. Whisenand" on Justia Law

In 2008, West Bend filed a legal malpractice action based on the performance of attorney Schumacher and his firm, RLGZ, in a 2005-2006 workers’ compensation matter. The parties agreed to a dismissal of that claim and entered into a tolling agreement pending the resolution of related actions. After the resolution of those claims, West Bend filed a malpractice suit against Schumacher in 2013. The district court dismissed the first and an amended complaint, concluding that the allegations were too speculative or vague. The court stated that allegations about failure to depose a doctor, failure to contact witnesses prior to the hearing, the disclosure of certain facts to opposing counsel, and that Schumacher had represented that West Bend would accept liability, did not explain “how any of these alleged acts and omissions harmed its defense.” The Seventh Circuit affirmed. The complaint did not adequately plead a claim for legal malpractice under Illinois law; it fails to allege plausibly that the outcome of the underlying action would have been more favorable to West Bend, had it not been for Schumacher’s alleged litigation conduct View "West Bend Mutual Insurance Co v. Schumacher" on Justia Law

Hannon, an attorney, represented Barber in litigation against the victim, Barber’s former domestic partner, Dr. Magno. In December 2006, the parties agreed that Barber would fund a college trust for their children. Barber paid $27,500.32 to Hannon as the trustee of the children’s funds and authorized Hannon to open a bank account. In February 2011, the victim became aware that the children’s funds had been misappropriated. Hannon may have used the money to cover legal fees owed by Barber. Charged with grand theft by embezzlement by a fiduciary (Pen. Code 487(a), 506), Hannon ultimately pled no contest to misdemeanor theft by embezzlement. The trial court placed him on probation for two years, ordered him to perform 240 hours of community service, and ordered him to pay $40,800 in restitution to the victim: $25,000 in attorney’s fees, $15,000 in lost wages, and $800 in mileage. The court of appeal rejected challenges to the restitution award and held that the victim was entitled to file a victim impact statement on appeal, pursuant to the Victims’ Bill of Rights Act of 2008 (Marsy’s Law, Proposition 9 (2008)), but may not raise present legal issues not raised by Hannon or facts not in the record below View "People v. Hannon" on Justia Law

Counsel for appellant Martin Frantz hired attorney Merlyn Clark as an expert witness in an unrelated matter in 2009. Clark was a partner with respondent law firm Hawley Troxell Ennis & Hawley LLP (“Hawley Troxell”). In 2010, Frantz’ creditor, Idaho Independent Bank, hired Hawley Troxell to represent it in a contract action against Frantz. In 2011, while that matter was pending, Frantz filed for bankruptcy. Hawley Troxell continued to represent the Bank as a creditor in the bankruptcy, including in an adversary proceeding the Bank filed against Frantz in 2013. Frantz alleged in the adversary proceeding that Clark’s interactions with Frantz in the 2009 matter created an attorney-client relationship and that it was therefore a conflict of interest for Clark’s firm to represent the Bank against Frantz. Frantz also alleged that Hawley Troxell improperly used confidential information Clark acquired in the 2009 matter. The bankruptcy court concluded that there was no attorney-client relationship between Clark (or Hawley Troxell) and Frantz. The adversary proceeding was later dismissed as moot. Frantz subsequently sued Hawley Troxell in Idaho district court, alleging legal malpractice and breach of fiduciary duty. The district court denied pro hac vice admission to attorney Jeffrey Katz, Frantz’ chosen counsel. The district court also dismissed the complaint on the grounds of judicial estoppel, lack of standing, and abatement. Finally, it awarded Hawley Troxell attorney fees under Idaho Code sections 12-120(3) and 12-121. Frantz appealed the denial of pro hac vice admission, the dismissal of his complaint, and the award of attorney fees. Finding no reversible error after review of the trial court record, the Supreme Court affirmed. View "Frantz v. Troxell" on Justia Law