Justia Legal Ethics Opinion Summaries

Innovative Images, LLC sued its former attorney James Summerville, Summerville Moore, P.C., and The Summerville Firm, LLC (collectively, the “Summerville Defendants”) for legal malpractice. In response, the Summerville Defendants moved to dismiss the suit and to compel arbitration in accordance with the parties’ engagement agreement, which included a clause mandating arbitration for any dispute arising under the agreement. The trial court denied the motion, ruling that the arbitration clause was “unconscionable” and thus unenforceable because it had been entered into in violation of Rule 1.4 (b) of the Georgia Rules of Professional Conduct (“GRPC”) for attorneys found in Georgia Bar Rule 4-102 (d). The Court of Appeals reversed, holding that the arbitration clause was not void as against public policy or unconscionable. The Georgia Supreme Court concluded after review that regardless of whether the Summerville Defendants violated GRPC Rule 1.4 (b) by entering into the mandatory arbitration clause in the engagement agreement without first apprising Innovative of the advantages and disadvantages of arbitration, the clause was not void as against public policy because Innovative did not argue, and no court has held, that such an arbitration clause could never lawfully be included in an attorney-client contract. For similar reasons, the Supreme Court held the arbitration clause was not substantively unconscionable, and on the limited record before it, Innovative did not show the clause was procedurally unconscionable. Accordingly, the Court affirmed the appellate court's judgment. View "Innovative Images, LLC v. Summerville et al." on Justia Law

“Under longstanding Georgia law,” when a client sues his former attorney for legal malpractice, the client impliedly waives the attorney-client privilege with respect to the underlying matter or matters to the extent necessary for the attorney to defend against the legal malpractice claim. The issue this case presented for the Georgia Supreme Court’s review was whether the implied waiver extended to the client’s communications with other attorneys who represented the client with respect to the same underlying matter, but whom the client chose not to sue. The trial court held that the waiver did not extend to such other counsel and therefore denied a motion for a protective order in this legal malpractice case. The Court of Appeals reversed. The issue presented was a matter of first impression for the Supreme Court, which held that when a client sues his former attorney for legal malpractice, the implied waiver of the attorney-client privilege extends to the client’s communications who represented the client with respect to the same underlying transaction or litigation. View "Hill, Kertscher & Wharton, LLP v. Moody et al." on Justia Law

This case presented for the Georgia Supreme Court’s review an issue of first impression: the effects of the General Assembly’s wholesale revision in 2016 of the anti-SLAPP statute, OCGA 9-11-11.1, which substantially mirrored California Code of Civil Procedure 425.16. LTC Consulting, L.P. and two affiliated entities sued law firm Wilkes & McHugh, P.A. and one of its attorneys for violations of OCGA 31-7-3.2 (j), deceptive trade practices, and false advertising after the defendants ran full-page advertisements in local newspapers targeting patients of nursing homes owned by the plaintiffs. The defendants filed a Motion to Dismiss or to Strike Pursuant to OCGA sections 9-11-11.1 and 9-11-12 (b) (6), arguing among other things that OCGA 31-7-3.2 (j), enacted in 2015, violated the First Amendment. The motion was filed the day before a previously scheduled injunction hearing, but the trial court considered the defendants’ motion and denied it. The defendants appealed to the Court of Appeals, which transferred the case to the Georgia Supreme Court. The Supreme Court concluded the defendants met their burden under OCGA 9-11-11.1 to show that the plaintiffs’ claims were ones arising from acts that could reasonably be construed as acts in furtherance of the defendants’ right of free speech under the United States Constitution in connection with an issue of public interest or concern, thereby triggering the application of OCGA 9-11-11.1. The burden then shifted to the plaintiffs to establish that there was a probability that they would prevail on their claims. However, in analyzing these claims, the parties did not argue, and the trial court did not properly apply, the new standards for anti-SLAPP motions. Judgment was vacated and the matter remanded for reconsideration of the anti-SLAPP motion under the proper standards. View "Wilkes & McHugh, P.A., v. LTC Consulting, L.P. et al." on Justia Law

Judge Tammy Stokes was publicly reprimanded for admitted violations of the Georgia Code of Judicial conduct. The Georgia Supreme Court found Judge Stokes violated Rule 1.2(A), which required judges to “act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary” by habitually starting court late or being absent with no good cause to excuse her behavior. View "Inquiry concerning Judge Tammy Stokes" on Justia Law

In Cherokee Funding v. Ruth, 802 SE2d 865 (2017), the Georgia Court of Appeals decided that neither the Industrial Loan Act, nor the Payday Lending Act, applied to certain transactions in which a financing company provides funds to a plaintiff in a pending personal-injury lawsuit, the plaintiff is obligated to repay the funds with interest only if his lawsuit is successful, and his obligation to repay is limited to the extent of the damages that he recovers in the lawsuit. The Georgia Supreme Court granted certiorari to review the decision in Cherokee Funding. Ronald Ruth and Kimberly Oglesby sustained injuries in automobile accidents, and they retained attorney Michael Hostilo to represent them in connection with lawsuits to recover damages for their injuries. While their lawsuits were pending, Ruth and Oglesby obtained funds from Cherokee Funding pursuant to financing agreements that Hostilo signed on their behalf. Cherokee Funding would provide funds to Ruth and Oglesby for personal expenses, and for the most part, their obligation to repay those funds was contingent upon the success of their lawsuits. If they recovered nothing, they would have no obligation to repay. If they recovered damages, however, they would be required to repay the amounts that Cherokee Funding had provided, as well as interest at a rate of 4.99 percent per month and various other “fees,” up to the amount of their recovery. In no event would they be required to pay Cherokee Funding any amounts in excess of their lawsuit recovery. In fact, Ruth and Oglesby would not have been in default under the financing agreements if they dismissed their underlying lawsuits and kept the money they received from Cherokee Funding. Cherokee Funding provided $5,550 to Ruth in several small installments between April 2012 and June 2013. Ruth settled his case for an unspecified amount; Cherokee Funding sought to recover more than $84,000 from Ruth pursuant to the terms of his agreement. Similarly, Oglesby settled her lawsuit for an unspecified amount, and money was deducted from her settlement proceeds to repay Cherokee Funding. The two then sued Cherokee Funding seeking relief for themselves and a putative class of similarly situated people to whom Cherokee Funding provided funds under agreements facilitated by Hostilo. The Georgia Supreme Court affirmed the appellate court’s determination that the Payday Lending Act nor the Industrial Loan act applied in this case. View "Ruth v. Cherokee Funding, LLC" on Justia Law

The Director of the Judicial Qualifications Commission (JQC) brought formal charged against Eddie Anderson, the Chief Magistrate Judge for Tattnall County. The acts of judicial misconduct arose from the repossession of a vehicle from a woman by the owner of an automobile dealership due to lack of payment to the dealership and lack of insurance on the vehicle. Judge Anderson demanded via an ex parte phone call that the owner either return the woman’s repossessed vehicle or remit the money paid to the dealership for the vehicle and reimburse the woman for her insurance costs. When the owner refused these ex parte demands, Judge Anderson advised the woman to file a case against the owner in his court, which she later did. Judge Anderson undermined the public integrity and impartiality of the judiciary by advising the woman to file a case and by making ex parte demands before a case was even filed. Moreover, Judge Anderson’s demands and the woman’s subsequent lawsuit violated clearly established law. The Georgia Supreme Court accepted an agreement between the JQC and Judge Anderson that he be publicly reprimanded for his admitted violations of the Georgia Code of Judicial Conduct. View "Inquiry concerning Judge Eddie Anderson" on Justia Law

The Georgia Supreme Court granted a writ of certiorari in this case to decide whether, when a motion to recuse the trial judge is filed after the judge has orally held a party’s attorney in contempt, the recusal motion must be decided before the judge may properly proceed to enter a written contempt order. Michael O. Mondy, Esq. represented Moses Langford, the defendant in a breach of contract and trade secrets lawsuit brought in state court by Langford’s former employer, Magnolia Advanced Materials, Inc. Langford was also the plaintiff in an employment discrimination case against Magnolia brought in federal court in Georgia, and Magnolia was also the defendant in a trade secrets case brought by its competitor, Epoplex, in federal court in South Carolina. A few days after Epoplex issued a federal court subpoena to Langford requesting Magnolia documents, the trial judge in the state case entered an injunction prohibiting Mondy and Langford from directly or indirectly disclosing or permitting unauthorized access to Magnolia’s non-public information. Magnolia moved to quash the federal subpoena, and a federal magistrate judge entered an order staying compliance with the subpoena until further order. A few days later, Mondy filed an unsealed brief with 28 exhibits opposing the motion to quash. Because the brief was not sealed, Magnolia’s non-public information in the exhibits was made available not only to the general public but to Magnolia’s competitor Epoplex – to whom Mondy also directly sent a Dropbox link containing the brief and exhibits. Magnolia then filed a motion in the state case to hold Mondy and Langford in contempt of the injunction. Days later, Mondy moved the trial court to recuse the trial judge. The judge did not immediately rule on the recusal motion. Instead, the judge held Mondy in contempt, then voluntarily recused himself from further proceedings. Mondy appealed the contempt order. The Court of Appeals held that the trial judge could ignore the pending recusal motion and enter the contempt order. The Georgia Supreme Court disapproved that holding, concluding that under Uniform Rule of Superior Court 25.3, the entry of a written contempt order was an “act upon the merits” of the contempt proceeding that a trial judge whose impartiality has been formally called into question may not properly perform until the recusal motion has been decided. The Court concluded, however, that even assuming the motion to recuse in this case was not only filed with the clerk but also “presented” to the trial judge as Rule 25.3 required, the motion was legally insufficient on its face. Thus, if properly considered, the recusal motion would not have required the trial judge’s recusal, and the judge’s procedural error does not require the Supreme Court to vacate the contempt order that followed. Therefore, the Court ultimately affirmed the Court of Appeals. View "Mondy v. Magnolia Advanced Materials, Inc." on Justia Law

This case raised a question of whether Alexander v. Georgia, 772 SE2d 655 (2015), could be applied retroactively. The Georgia Supreme Court held that an attorney’s failure to counsel his client about parole eligibility may give rise to a claim of ineffective assistance of counsel. Teresa Lynn Kohnle pleaded guilty to felony murder in December 2010, before Alexander was decided, but after the United States Supreme Court issued its opinion in Padilla v. Kentucky, 559 U. S. 356 (2010), on which the Georgia Court relied in deciding Alexander. Sentenced to life in prison, Kohnle filed a petition for a writ of habeas corpus, alleging that her plea counsel was ineffective in several ways, including that he failed to inform her of the parole eligibility implications of a life sentence. The habeas court granted Kohnle’s petition, relying on Alexander to conclude that Kohnle’s counsel had rendered ineffective assistance. The Warden appealed, arguing that the habeas court erred in applying Alexander retroactively. The Georgia Supreme Court agreed with the Warden that the habeas court erred by applying Alexander to find that plea counsel performed deficiently by failing to advise Kohnle that she would not be eligible for parole for 30 years if she pleaded guilty, and thus the Court vacated the habeas court’s order. But the Court remanded for the habeas court to consider Kohnle’s claim that counsel was deficient for affirmatively misinforming her about parole eligibility matters, something the Court had held could support a claim of ineffective assistance long before Kohnle entered her plea. View "Kennedy v. Kohnle" on Justia Law

Plaintiff RES-GA McDonough LLC (“RES-GA”) brought a legal malpractice action against Taylor English Duma LLP and two of its attorneys (collectively, “Taylor English”). RES-GA contended that Taylor English failed to timely assert a Uniform Fraudulent Transfer Act claim, thus damaging RES-GA’s ability to satisfy its judgment against a debtor. Taylor English moved to dismiss the complaint, contending that RES-GA had failed to allege a viable underlying cause of action to support its malpractice claim. The trial court agreed and granted Taylor English’s motion to dismiss. Finding no reversible error, the Georgia Supreme Court affirmed. View "RES-GA McDonough, LLC v. Taylor English Duma, LLP" on Justia Law

Appellant Wardell White entered guilty pleas to felony murder and other crimes in connection with the shooting deaths of Victor Martinez and Mauricio Maldonado, and the trial court entered judgments of conviction and sentence on the guilty pleas that did not merge. During the same term of court, Appellant filed two pro se motions to withdraw guilty pleas. The State moved to dismiss the pro se motions on the ground that Appellant was represented by counsel when he filed them, and the trial court granted the State’s motion. Appellant, assisted by counsel, filed a timely notice of appeal. However, finding no reversible error, the Georgia Supreme Court affirmed. View "White v. Georgia" on Justia Law