Justia Legal Ethics Opinion Summaries

This case involved a legal malpractice claim brought by Plaintiff MB Industries, LLC (MBI) against attorneys Steven Durio and John Weinstein. The attorneys represented MBI in an ultimately unsuccessful lawsuit against former MBI employees. Rather than appeal the unfavorable judgment, MBI chose to sue its former attorneys. The issues before the Supreme Court were: (1) whether a party's failure to appeal an underlying judgment waived any right to bring a legal malpractice claim based on that judgment; and (2) whether summary judgment was properly granted in light of MBI's failure to introduce expert testimony to establish the applicable standard of care which would have demonstrated the attorneys' actions fell below that standard. After careful review, the Court found that Louisiana law does not impose a "per se" rule requiring an appeal before a client can sue his former attorney. Furthermore, the Court found that a party alleging legal malpractice must introduce expert testimony to establish a standard of care "except in those rare cases involving malpractice so egregious that a lay jury could infer the defendant's actions fell below any reasonable standard." The Court found that under the particular facts of this case, there were no genuine issues of material fact, and that MBI failed to establish it could satisfy its evidentiary burden of proof at trial. The attorneys were entitled to judgment as a matter of law. Accordingly, the Court reversed the appellate court and reinstated the trial court's original judgment in favor of the attorneys.

Respondent Deborah Spence alleged that attorney Kenneth Wingate breached a fiduciary duty to her as a former client in its handling of her late husband's life insurance policy. Mr. Spence was a member of United States House of Representatives, and he held a life insurance policy.  Mr. Spence named Mrs. Spence and his four sons from a prior marriage as the beneficiaries of the policy, with all five to receive equal shares of the proceeds. Wingate undertook representation of Mrs. Spence with regards to the assets of her husband, her inheritance rights, and her rights in his estate.  Wingate advised Mrs. Spence that she was entitled to nothing from her husband's estate and that she was barred from receiving an elective share by a prenuptial agreement. Wingate advised Mrs. Spence to enter into an agreement with the four adult sons of Mr. Spence to create a trust to provide her with a lifetime income stream. The trust was to be created and funded from one-third of the value of Mr. Spence's probate estate. Mrs. Spence thereafter came to believe that the amount she received under the agreement negotiated by Wingate was much less than what she was entitled to under the will and its codicil or if she had opted for an elective share. Mrs. Spence thereafter brought a lawsuit to set aside the agreement creating the trust. The agreement was eventually set aside. The circuit court granted partial summary judgment in favor of Wingate and found that, "[b]y statute, [Wingate] owed no duty or obligation to [Mrs. Spence] in connection with the congressional life insurance policy or the manner in which it was paid." The Court of Appeals reversed the grant of summary judgment to Wingate and remanded the matter for trial. Upon review, the Supreme Court concluded Wingate owed a fiduciary duty to Mrs. Spence: "[t]his duty included, among other obligations, the obligation not to act in a manner adverse to her interests in matters substantially related to the prior representation.  … we uphold the decision of the Court of Appeals to reverse the grant of summary judgment and remand this matter for trial.  To the extent the Court of Appeals indicated whether a duty was owed was a question of fact for the jury, the decision is modified to recognize that whether a fiduciary relationship exists between two classes of persons is a matter to be determined by a court."

This case stemmed from plaintiff's complaint, alleging that on September 11, 2001, a bomb was detonated inside the Pentagon, that no plane hit the Pentagon, and that various identified United States civilian and military leaders knew about the 9/11 attacks in advance, assisted in their planning, and subsequently covered up the government's involvement. Following the court's order to show cause why sanctions should not be imposed for filing a frivolous appeal, sanctions were imposed on plaintiff's counsel of record. One of plaintiff's counsel of record, William Veale, was further sanctioned for filing a frivolous and vexatious motion to disqualify the panel "and any like-minded colleagues" from considering plaintiff's petition for panel rehearing and rehearing in banc of the court's opinion in Gallop I, following a July 7, 2011 order to show cause. In addition, plaintiff's lead counsel of record, Dennis Cunningham, was admitted pro hac vice for the purpose of this appeal and was ordered to show cause why he should not be separately sanctioned for his principal role in drafting the relevant filings.

Appellants appealed the dismissal of their class action complaint against Nextel, the law firm of Leeds, Morelli & Brown, P.C. (LMB), and seven of LMB's lawyers (also LMB). Appellants were former clients of LMB who retained the firm to bring discrimination claims against Nextel. The complaint asserted that, inter alia, LMB breached its fiduciary duty of loyalty to appellants and the class by entering into an agreement with Nextel in which Nextel agreed to pay: (i) $2 million to LMB to persuade en masse its approximately 587 clients to, inter alia, abandon ongoing legal and administrative proceedings against Nextel, waive their rights to a jury trial and punitive damages, and accept an expedited mediation/arbitration procedure; (ii) another $3.5 million to LMB on a sliding scale as the clients' claims were resolved through that procedure; and (iii) another $2 million to LMB to work directly for Nextel as a consultant for two years beginning when the clients' claims had been resolved. The court held that appellants have alleged facts sufficient to state a claim against LMB for, inter alia, breach of fiduciary duty and against Nextel for aiding and abetting breach of fiduciary duty. Therefore, the court vacated and remanded for further proceedings.

The Mississippi Commission on Judicial Performance filed a Formal Complaint against Lamar County Justice Court Judge Carol Ann Bustin. The complaint charged that Judge Bustin, while serving as an attorney for David C. Lema’s ex-wife, executed a felony arrest warrant for Lema based upon an affidavit submitted by the ex-wife. The Commission and Judge Bustin jointly moved the Supreme Court to accept an agreed findings of fact and to approve the recommended sanctions: a public reprimand, a $500 fine, and assessment of costs in the amount of $100. After conducting an independent inquiry and giving careful consideration to the joint motion for approval of recommendations and the supporting brief, the Court disagreed with the recommendation of the Commission. "Because Judge Bustin abused the power of her office, acted as judge in a matter involving one of her own clients, and has engaged in similar misconduct in the past, we order a thirty-day suspension from office without pay in addition to the recommended sanctions."

Plaintiff filed suit, pro se, under 42 U.S.C. 1983, alleging arrest without probably cause and assault. The judge allowed him to proceed in forma pauperis. After plaintiff delayed in responding to a draft pretrial order, the judge imposed a sanction of $9,055 against the plaintiff and an attorney who had agreed to represent him. Plaintiff was unable to pay and the judge rejected his offer of $25 per month. When plaintiff did not pay within the 30 day period set by the court, it dismissed his suit. The Seventh Circuit reversed, noting that the fine was actually paid by the attorney after plaintiff complained to the Illinois Attorney Registration and Disciplinary Commission. The attorney admitted being unfamiliar with the federal rules and that he had never before filed a pretrial order.

The Attorney Registration and Disciplinary Commission filed a complaint against an attorney, claiming that he converted third-party funds; failed to hold property of a third person separate from his own; failed to promptly deliver to the third person funds to which the person was entitled; engaged in conduct involving dishonesty, deceit, fraud, or misrepresentation; engaged in conduct prejudicial to administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Hearing Board found that he had converted funds and violated three rules, but found that the Administrator did not prove conduct involving dishonesty, deceit, fraud, or misrepresentation, and recommended suspension for three months and mandatory attendance at a seminar on professionalism and office management. The Review Board affirmed, but recommended a six-month suspension. The Illinois Supreme Court affirmed the decision of the Hearing Board. The attorney, apparently unaware of proper procedures for handling funds, admitted wrongdoing, expressed remorse, and cooperated. He had not been previously disciplined and offered several witnesses who testified to his excellent reputation for honesty. He spends large amounts of time providing pro bono services and made full restitution.

The owner of an outdoor amphitheater in a rural area claimed that the sheriff forced him to hire off-duty deputies as a private security force for events and threatened to close the road leading to his property if he did not comply. After giving plaintiff's attorney three tries at producing a complaint that complied with Rules 8 and 10(b) of the Federal Rules of Civil Procedure, the district court dismissed the case with prejudice. The Seventh Circuit affirmed, noting that each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. The Seventh Circuit ordered plaintiff's attorney to show cause why he should not be suspended from the bar of the court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure and directed that a copy be sent to the Illinois Attorney Registration and Disciplinary Commission.

Plaintiff Lorraine Tessier appealed a superior court order that granted Defendants' Regina Rockefeller and Nixon Peabody, LLP's motion to dismiss. The plaintiff is the wife of Thomas Tessier, an attorney who practiced at the law firm of Christy & Tessier in Manchester. Dr. Frederick Jakobiec hired Attorney Tessier to handle certain estate matters on his behalf. Attorney Rockefeller, an attorney employed by Nixon Peabody, and acting on behalf of Dr. Jakobiec, accused Attorney Tessier of misusing and converting substantial assets of the Jakobiec family to his own use. Plaintiff alleged that Attorney Rockefeller met with Attorney Tessier on numerous occasions and threatened him demanding an immediate return of the misappropriated assets. Attorney Rockefeller stated to Attorney Tessier that if he repaid the money no further action would be taken against him. Plaintiff alleged that over the next two years, Defendants "stripped" her and her husband of their individual and joint interests in all of their tangible assets. And despite a settlement agreement, and without notice to her or her husband, Defendants reported Attorney Tessier’s actions the attorney discipline office, and others. In addition, Dr. Jakobiec hired an attorney to bring suit against Attorney Tessier and to foreclose on the mortgage that was the subject of the settlement agreement. Plaintiff alleges that she suffered severe emotional and physical distress requiring hospitalization. Upon review, the Supreme Court reversed part of the trial court's decision, and affirmed part. The Court found there was sufficient facts pled to support multiple causes of action Plaintiff brought in her original lawsuit. The Court found that the trial court was correct in dismissing Plaintiff's allegations of abuse of process and intentional infliction of emotional distress. The Court remanded the case for further proceedings.

The Mississippi Commission on Judicial Performance filed a formal complaint against Nell Y. Cowart, justice court judge for the Southeast District, Pearl River County, Mississippi, alleging judicial misconduct. After conducting an independent inquiry of the record and giving careful consideration to the findings of fact and recommendation of the Commission, the Supreme Court adopted the agreed-upon sanctions. Judge Cowart admitted she made a phone call in an attempt to help release a criminal defendant from jail. Judge Cowart stated that the defendant in question was not a criminal, and "would not spend another night in jail." While an officer was testifying concerning the allegations against the defendant, Judge Cowart became emotional and tearful. After Judge Cowart set bond at $5,000, the defendant was removed from the courtroom, and Judge Cowart apologized to the officers for her emotional display of sympathy toward the defendant. On the basis of these actions the Commission filed a formal complaint against Judge Cowart.