Justia Legal Ethics Opinion Summaries
Articles Posted in U.S. Court of Appeals for the Ninth Circuit
GREER V. COUNTY OF SAN DIEGO
Frankie Greer filed a lawsuit against the County of San Diego under 42 U.S.C. § 1983, claiming he suffered serious injuries while incarcerated in the San Diego Central Jail. During discovery, Greer requested documents from the County’s Critical Incident Review Board (CIRB) meetings related to in-custody deaths. The CIRB’s purpose is to consult with legal counsel on incidents that may lead to litigation, assess civil exposure, and recommend remedial actions. The district court ruled that the CIRB documents were not protected by attorney-client privilege, as the CIRB served multiple purposes beyond obtaining legal advice. After Greer settled his claims, several media organizations intervened to unseal the CIRB documents.The United States District Court for the Southern District of California denied the County’s motion for reconsideration and ordered the production of the CIRB documents, which were then produced under an attorneys’-eyes-only protective order. The district court also granted the media organizations' motion to intervene and unseal the documents, leading to the County’s appeal.The United States Court of Appeals for the Ninth Circuit reviewed the case and held that the appeal was not moot, as effective relief could still be provided by ordering the return or destruction of the CIRB documents. The court determined that the attorney-client privilege applied to the CIRB documents, as the primary purpose of the CIRB meetings was to obtain legal advice regarding potential litigation and to avoid future liability. The court found that the district court had made significant legal errors in its determination and that the County had not waived the privilege. The Ninth Circuit reversed the district court’s order and remanded with instructions to require the return and/or destruction of the privileged documents. View "GREER V. COUNTY OF SAN DIEGO" on Justia Law
In re Grand Jury Subpoena, Dated July 21, 2023
An individual, referred to as "Client," became the target of a criminal investigation into alleged tax evasion. The grand jury issued a subpoena to Client, who invoked his Fifth Amendment privilege against self-incrimination and refused to produce documents. Subsequently, the grand jury subpoenaed the law firm that had represented Client in tax matters, requesting documents related to that representation and instructing the firm to provide a privilege log if any documents were withheld. The law firm declined to produce certain documents or provide a privilege log, citing attorney-client privilege, the work-product doctrine, and Client’s Fifth Amendment rights.The United States District Court for the Central District of California ordered the law firm to provide the Government with a privilege log, rejecting the firm's assertion of Client’s Fifth Amendment rights. The district court temporarily stayed enforcement of its order, and Client filed an interlocutory appeal.The United States Court of Appeals for the Ninth Circuit reviewed the case. The court held that an attorney cannot be compelled to provide the Government with a privilege log of documents protected under Fisher v. United States, 425 U.S. 391 (1976). The court explained that providing a privilege log would reveal the existence, authenticity, and Client’s custody of the documents, thus undermining Client’s Fifth Amendment act-of-production privilege. The court determined that to assess whether the documents are indeed protected under Fisher, the district court should conduct an in camera review.The Ninth Circuit reversed the district court’s order and remanded the case for further proceedings, instructing the district court to conduct an in camera review to determine the applicability of the Fisher privilege. View "In re Grand Jury Subpoena, Dated July 21, 2023" on Justia Law
Amphastar Pharmaceuticals v. Aventis Pharma
The Supreme Court's opinion in CRST Van Expedited Inc. v. E.E.O.C., 136 S. Ct. 1642, 1646 (2016), effectively overruled Branson v Nott's holding that when a defendant wins because the action is dismissed for lack of subject matter jurisdiction he is never a prevailing party. In this case, Amphastar filed a qui tam action against Aventis under the False Claims Act (FCA), 31 U.S.C 3730, alleging that Aventis obtained an illegal monopoly over the drug enoxaparin and then knowingly overcharged the United States. The district court dismissed the suit based on lack of subject matter jurisdiction. The Ninth Circuit held that Amphastar's allegations were based on publicly disclosed information, and it lacked the direct and independent knowledge needed to be an original source. Therefore, the panel upheld the district court's judgment on the merits. However, the panel held that the district court erroneously concluded that it could not award attorneys' fees, because the FCA's fee-shifting provision contained an independent grant of subject matter jurisdiction and because a party who wins a lawsuit on a non-merits issue is a "prevailing party." The panel remanded for resolution of the attorneys' fees issue. View "Amphastar Pharmaceuticals v. Aventis Pharma" on Justia Law
Decker v. Berryhill
The Ninth Circuit affirmed the denial of plaintiff's application for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d)(1)(A), holding that the Commissioner's litigation position was substantially justified. Plaintiff had successfully challenged the Commissioner's denial of her application for disability benefits and obtained a remand of her claim to the agency for further consideration. In this case, the district court did not abuse its discretion in determining that the Commissioner's position was substantially justified because the Commissioner's opposition to remand the claim on the merits was reasonable, even though it turned out to be unsuccessful. Finally, plaintiff's new evidence, though sufficient in the end to persuade the district court to remand the case, did not make that the only reasonable result. View "Decker v. Berryhill" on Justia Law
Gardner v. Berryhill
The Ninth Circuit affirmed the denial of plaintiff's application for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d)(1)(A). Plaintiff presented new evidence to the Appeals Council after she lost her claim for social security disability benefits before the ALJ. The district court remanded for further consideration and the Commissioner did not appeal. The district court denied plaintiff's request for attorney's fees, concluding that the Commissioner was substantially justified in arguing that the new evidence did not undermine the ALJ's denial of benefits. The issue that was before the district court on the original merits appeal of the ALJ's denial of benefits was not whether there was other evidence that could support a denial of benefits to plaintiff, or whether the Commissioner's denial of benefits might ultimately be sustained. The Ninth Circuit explained that it was whether the actual decision that was made by the ALJ could be affirmed at that time by the district court in light of the new evidence in the record. In this case, it should have been plain that it could not have been affirmed, because the ALJ's decision failed to provide a reason that was still viable for giving the opinion of the treating doctor little weight. The doctor's final report, if credited, would have undermined the ALJ's original finding that plaintiff was not disabled. Even if the Commissioner might have had a legitimate basis for opposing plaintiff's claim, she did not have a basis to oppose remand and to argue that the district court should affirm the existing ALJ opinion. View "Gardner v. Berryhill" on Justia Law
Blixseth v. Yellowstone Mountain Club
The court filed an order denying Appellant Blixseth's counsel's motion and amended motion for reconsideration of the Commissioner's orders awarding attorneys' fees and non-taxable costs; denying requests for recusal, appointment of a new panel, conversion of the matter to a criminal proceeding, transfer of the matter to the U.S. Attorney, and holding of the awards in abeyance; and denying counsel's suggestion for reconsideration. The court concluded that the Commissioner correctly declined to award attorneys' fees and non-taxable costs under Federal Rule of Appellate Procedure 38 against Blixseth and his attorney Michael J.Flynn for preparing appellees' statements regarding Blixseth's pro se response and Flynn's response to the court's order to show cause against Blixseth and Flynn ("fees-on-fees"), and correctly awarded fees and costs under 28 U.S.C. 1927 against Flynn for preparing the statements regarding Flynn's response. The court also concluded that Rule 38 is a damage provision authorizing award of "just damages;" the award of fees and costs under Rule 38 thus must be limited to appellees' direct fees and costs for defending against the frivolous appeal, and may not include the fees and costs incurred regarding the imposition of sanctions; and section 1927 is a fee-shifting provision allowing an award of fees-on-fees. View "Blixseth v. Yellowstone Mountain Club" on Justia Law
Irvine Unified School District v. K.G.
This case arose from a dispute over which California government entity would be responsible for funding the education of K.G. pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400(d)(1)(A). The School District contended that the district court erred in granting K.G. relief from its original judgment denying attorneys' fees. The court concluded that the district court did not apply the incorrect legal rule in evaluating whether to grant relief pursuant to Rule 60(b)(1) where the district court's determination that K.G.'s delay in pursuing Rule 60(b) relief was understandable in light of the original attorney's poor mental and physical health; K.G. was the prevailing party entitled to attorney fees because K.G.'s prayer was answered in full when the ALJ designated the School District as the responsible agency and granted K.G.'s requested relief; K.G. qualified as a prevailing party under the IDEA, and this victory was not trivial or merely technical; but it was not clear from the district court's award that it took into account forgoing considerations in reducing the fees originally requested. Accordingly, the court affirmed in part, vacated in part, and remanded. View "Irvine Unified School District v. K.G." on Justia Law
Bundy v. US District Court for the District of Nevada, Las Vegas
After the district court denied attorney Larry Klayman's application to be admitted pro hac vice in the high-profile criminal trial of Cliven Bundy, Bundy sought a writ of mandamus to force the district court to admit Klayman. The court denied relief, concluding that the district court had more than ample cause to turn down Klayman’s application: he is involved in an ethics proceeding before the District of Columbia Bar, and he was not candid with the court about the status of those proceedings; he disclosed that he was twice barred in perpetuity from appearing pro hac vice before judges in the Central District of California and the Southern District of New York, but he failed to list numerous cases—all available on Westlaw or LEXIS—in which he has been reprimanded, denied pro hac vice status, or otherwise sanctioned for violating various local rules; and he has a record of going after judges personally, and shortly after Chief Judge Gloria Navarro denied his application, Bundy filed a frivolous Bivens action against her in her own court. View "Bundy v. US District Court for the District of Nevada, Las Vegas" on Justia Law
M.D. v. Newport-Mesa Unified School District
A fifth-grade student and her mother filed suit against the school district and its employees because the student allegedly experienced retaliation after the mother complained to the school principal about the student's teacher. The district court dismissed the First Amendment retaliation claim without prejudice; plaintiffs failed to meet the filing deadline, and the school district filed a proposed judgment of dismissal; plaintiffs filed their Second Amended Complaint (SAC) the following day; the district court then entered a final judgment dismissing the First Amended Complaint, citing plaintiff's failure to file the SAC within the time allowed; and plaintiffs moved for relief from judgment under Federal Rule of Civil Procedure 60(b)(1) based on excusable neglect. The district court found that counsel's neglect was not excusable and the district court, in the meantime, moved for attorney's fees under the California Public Records Act (CPRA), Cal. Gov't Code 6259(d). The district court denied the fees. Plaintiffs appeal both the district court’s judgment of dismissal and the order denying relief from judgment. Defendants cross-appeal a portion of the dismissal order and the order denying attorney’s fees. The court concluded that the district court’s decision cannot be supported by the record and thus it abused its discretion by denying plaintiffs relief from judgment under Rule 60(b)(1). The court also concluded that plaintiffs' CPRA claim was neither indisputably without merit nor prosecuted for an improper motive. Accordingly, the court affirmed in part, reversed in part, and remanded. View "M.D. v. Newport-Mesa Unified School District" on Justia Law
Wood v. Burwell
In 2012, the Wood plaintiffs, who were recipients of health coverage under Arizona's Medicaid demonstration project, filed suit against the Secretary challenging her approval of a new Arizona project that raised copayments for medical visits and medications and that permitted healthcare providers to refuse non-emergency services based on an inability to pay. At issue on appeal is whether the members of the class action were the prevailing parties for purposes of attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412. The court applied the factors in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., holding that under the EAJA, the Wood plaintiffs are the prevailing party in their procedural Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A), challenge against the Secretary. The court noted that the dispositive question is not whether the plaintiff ultimately obtained some form of substantive relief, but rather whether there is a lasting alteration in the legal relationship between the parties. The court concluded that there was a material alteration in the legal relationship of the parties, to the benefit of the Wood plaintiffs. Finally, the court concluded that the retention of jurisdiction for practical and equitable reasons did not undermine the reality that the Wood plaintiffs were a prevailing party. Therefore, the court reversed and remanded to the district court to consider whether the government’s position was “substantially justified” under the EAJA. View "Wood v. Burwell" on Justia Law