Justia Legal Ethics Opinion Summaries

Articles Posted in US Court of Appeals for the Third Circuit
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Brace, a farmer, owns hundreds of acres in Erie County, Pennsylvania. He cleared 30 acres of wetlands, draining it to grow crops. In 1994, the Third Circuit affirmed that Brace had violated the Clean Water Act. In 2012, Brade bought 14 additional acres of wetlands. Again, he engaged in clearing, excavation, and filling without required permits. During a second suit under the Act, Brace’s counsel submitted perfunctory pleadings and failed to cooperate in discovery, repeatedly extending and missing deadlines. Counsel submitted over-length briefs smuggling in extra-record materials. The court repeatedly struck Brace’s materials but generally chose leniency. Eventually, the court struck Brace’s opposition to summary judgment after analyzing the “Poulis factors,” then granted the government summary judgment on liability, holding that Brace had violated the Act. The court ordered Brace to submit a proposed deed restriction and restoration plan.The Third Circuit rejected Brace’s appeal. While “it stretches credulity [to believe that Brace had] no idea how counsel [wa]s conducting this case,” the court gave Brace the benefit of the doubt. Brace’s lawyer’s misconduct forced the government to waste time and money “deciphering incomprehensible pleadings, scouring through noncompliant briefs, and moving again and again for compliance" to no avail. Counsel acted in bad faith; repeated orders to show cause, warnings, and threats of sanctions did not deter counsel’s chronic misbehavior. The sanction “was hardly an abuse of discretion.” View "United States v. Brace" on Justia Law

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Three clients filed separate discrimination cases, which were consolidated for discovery. The defendants obtained summary judgment. The clients filed a notice of appeal, then hired Paddick, who entered into a contingency fee agreement with each client, providing that Paddick would serve as counsel on remand and promising Paddick a 40 percent fee of any trial or settlement proceeds. Paddick prevailed in the appeal, then took 24 depositions, presented two oral arguments, attended two settlement conferences, and filed nine substantive motions or responses. When it came time to retain an expert witness, Paddick was unable to advance the necessary funds. The clients terminated their relationship with Paddick and retained Thompson to pursue their claims for a 35 percent contingent fee. Paddick informed Thompson of his work, noting that “fees remain due.” Thompson did not respond. The case settled for $380,000; Thompson’s share was $133,000. The district court acknowledged the settlements and dismissed the cases.A month later, Paddick successfully moved to intervene to enforce an attorney’s charging lien against the settlement proceeds. The Third Circuit affirmed an order that Thompson pay Paddick $54,562.73 from Thompson’s portion of the recovery. The district court had ancillary enforcement jurisdiction to resolve Paddick’s lien motion. The clients did not produce clear and convincing evidence of duress; imperfect representation does not necessarily bar Paddick from recovery. A client “should never be made to pay twice.” View "Butt v. United Brotherhood of Carpenters & Joiners of America" on Justia Law

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The Appellants, with a $594,000 Small Business Administration loan, bought a Harrisburg, Pennsylvania property that became a pub. They executed a note, mortgage, and unconditional guarantees, providing that federal law would control the enforcement of the note and guarantees and that they could not invoke any state or local law to deny their obligations. The Appellants defaulted on the loan and sold the property. The SBA allowed the sale to proceed but declined to release the Appellants from their loan obligations, which were assigned to CBE for collection. The Appellants sued, citing the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692, the Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). CBE sought sanctions under Federal Rules 11 and 37, arguing that the Appellants brought frivolous claims and disobeyed discovery orders. The Appellants filed an untimely brief opposing sanctions and summary judgment, which did not include the separate responsive statement of material facts required by Local Rule. The district court granted summary judgment and denied the sanctions motions, reasoning that neither FDCPA not UTPCPL applies to commercial debts and the Appellants identified no material facts supporting their other claims. The Third Circuit affirmed and granted CBE FRAP 38 damages. The Appellants filed a brief that was essentially a copy of the one filed in the district court. The substance of their appeal “is as frivolous as its form.” View "Conboy v. United States Small Business Administration" on Justia Law

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Two counties sued Sherwin-Williams in state court, seeking abatement of the public nuisance caused by lead-based paint. Anticipating suits by other counties, Sherwin-Williams sued in federal court under 42 U.S.C. 1983. Sherwin-Williams claimed that “[i]t is likely that the fee agreement between [Delaware County] and the outside trial lawyers [is] or will be substantively similar to an agreement struck by the same attorneys and Lehigh County to pursue what appears to be identical litigation” and that “the Count[y] ha[s] effectively and impermissibly delegated [its] exercise of police power to the private trial attorneys” by vesting the prosecutorial function in someone who has a financial interest in using the government’s police power to hold a defendant liable. The complaint pleaded a First Amendment violation, citing the company’s membership in trade associations, Sherwin-Williams’ purported petitioning of federal, state, and local governments, and its commercial speech. The complaint also argued that the public nuisance theory would seek to impose liability “that is grossly disproportionate,” arbitrary, retroactive, vague, and “after an unexplainable, prejudicial, and extraordinarily long delay, in violation of the Due Process Clause.”The Third Circuit affirmed the dismissal of the suit. Sherwin-Williams failed to plead an injury in fact or a ripe case or controversy because the alleged harms hinged on the County actually filing suit. View "Sherwin Williams Co. v. County of Delaware" on Justia Law

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Golubitsky, as a Virgin Islands Criminal Justice Act (CJA) panelist, was appointed counsel for Bellille, an indigent defendant in a multi-defendant RICO prosecution. Golubitsky unsuccessfully moved to withdraw, arguing that he was no longer a CJA panelist, having moved to an in-house counsel role, and was contractually barred from the representation. Weeks later, Golubitsky purportedly started an of-counsel relationship at the DiRuzzo law firm and filed an emergency motion to withdraw as Bellille’s counsel, arguing that DiRuzzo represented Ayala, who was likely to testify against Bellille, which created a conflict of interest. Golubitsky and DiRuzzo explained that Golubitsky was “on [the firm’s] system,” could bill using the firm’s software, and was added to DiRuzzo’s malpractice insurance. Golubitsky worked full-time as in-house counsel while working part-time for DiRuzzo’s Florida firm, litigating four matters together. They had no involvement in the other’s work related to Bellille’s case nor had they shared any information about the case. The court denied Golubitsky’s motion and ordered DiRuzzo and Golubitsky to wall off the latter’s representation of Bellille from DiRuzzo’s representation of Ayala.The Third Circuit vacated and remanded, noting many “factual gaps,” surrounding the relationship between DiRuzzo and Golubitsky and why the relationship was established. The situation cannot be both ways. Either the of-counsel relationship was not genuine and there was no basis for imposing a screen or there was a true of-counsel relationship and a screen alone could not cure the conflict. View "United States v. Bellille" on Justia Law

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In November 2013, three men robbed a Bala Cynwyd, Pennsylvania bank. A bank employee, Kane, later admitted to assisting them. The next morning, the three were pulled over in North Carolina. Wilson stated they were driving to Georgia and admitted that they had a lot of cash in the car. The officer, suspecting that they were going to buy drugs in Atlanta, searched the car, found the stolen cash, turned it over to federal agents, then released the men. A week later, three men robbed a Phoenixville, Pennsylvania bank. The police got a tip from Howell, whom Wilson had tried to recruit for the heists. Howell provided Wilson's cell phone number. Police pulled his cell-site location data, which put him at the Bala Cynwyd bank right before the first robbery and showed five calls and 17 text messages to Kane that day. Howell identified Wilson and Moore from a video of the robbery.Kane and Foster took plea bargains. Wilson and Moore were tried for bank robbery, conspiracy, and using a firearm in furtherance of a crime of violence. Moore was sentenced to 385 months’ imprisonment. Wilson received 519 months. The Third Circuit affirmed. Counsel’s stipulation that the banks were federally insured did not violate the Sixth Amendment, which does not categorically forbid stipulating to a crime’s jurisdictional element without the defendant’s consent or over the defendant’s objection. View "United States v. Wilson" on Justia Law

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Reyes-Romero was prosecuted for unlawful reentry, 8 U.S.C. 1326. The district court dismissed the indictment, finding that irregularities in Reyes-Romero’s removal proceeding constituted fundamental errors that caused him prejudice. The court stated that the government’s subjective motivation for its motion to dismiss was a desire to rely on the 2011 removal order in future immigration proceedings, which“taint[ed]” the Government’s effort. The court then awarded Reyes-Romero fees pursuant to the Hyde Amendment, under which a prevailing defendant in a federal criminal prosecution can apply to have his attorney’s fees and costs covered by the government if the defendant shows that “the position of the United States” in the prosecution “was vexatious, frivolous, or in bad faith,” 18 U.S.C. 3006A.The Third Circuit reversed. “Although assuredly born of good intentions and understandable frustration with faulty processes in the underlying removal proceeding,” the award was not based on the type of pervasive prosecutorial misconduct with which the Amendment is concerned. Reyes-Romero’s 2011 expedited removal proceeding deviated from the required ordered, sensible process and reasonable minds may differ about how the prosecution should have reacted once those issues became apparent. Where reasonable minds may differ, however, and where the government made objectively reasonable and defensible choices, there can be no Hyde Amendment liability. View "United States v. Reyes-Romero" on Justia Law

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Sepling, represented by SC, pled guilty to importing GBL, a controlled substance analogue, 21 U.S.C. 952; Sepling’s sentence would be calculated without consideration of the Guidelines career offender section. Sepling was released on bond pending sentencing and became involved in a conspiracy to import methylone, another Schedule I controlled substance. He was charged under 21 U.S.C. 963. A search uncovered three kilograms of methylone. Subsequent investigation revealed that the conspiracy involved approximately 10 kilograms. A Public Defender (APD) represented Sepling on the new charges. The prosecution agreed to withdraw the new charge; in exchange, Sepling’s involvement in the conspiracy would be factored into his GBL sentence as relevant conduct. The APD ceased representing Sepling. Sepling’s unmodified Guideline range for the GBL was 27-33 months. The methylone relevant conduct dramatically increased his base offense level. The PSR analogized methylone to MDMA, commonly called “ecstasy,” and held him responsible for 10 kilograms, resulting in responsibility equivalent to that for conspiring to distribute five and a half tons of marijuana, for a sentencing range of 188-235 months. SC did not object to that calculation, nor did he file a sentencing memorandum. Rather than researching the pharmacological effect of methylone, SC relied upon Sepling to explain the effects of methylone. SC, the government, and the court all confessed that they did not possess any substantive knowledge of methylone The Third Circuit vacated the 102-month sentence. Sepling was prejudiced by his counsel’s ineffectiveness. View "United States v. Sepling" on Justia Law

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Wolfington brought a claim under the Truth in Lending Act, 15 U.S.C. 1601, stemming from reconstructive knee surgery he received from Reconstructive Orthopaedic Associates (the Rothman Institute). Wolfington alleged that Rothman failed to provide disclosures required by the Act when it permitted him to pay his deductible in monthly installments following surgery. The district court entered judgment, rejecting Wolfington’s claim because it determined he had failed to allege that credit had been extended to him in a “written agreement,” as required by the Act’s implementing regulation, Regulation Z. The court also sua sponte imposed sanctions on Wolfington’s counsel. The Third Circuit affirmed in part, agreeing that Wolfington failed to adequately allege the existence of a written agreement, but concluded that counsel’s investigation and conduct were not unreasonable. In imposing sanctions, the district court placed emphasis on the statement by Rothman’s counsel, not Wolfington’s. The statement by Wolfington’s counsel did not amount to an “unequivocal” admission that there was no written agreement. View "Wolfington v. Reconstructive Orthopaedic Associates II, PC" on Justia Law

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Pulitzer Prize-winning journalist Golden was researching Golden’s then-forthcoming book, Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities. Golden requested documents from public universities, including three requests to the New Jersey Institute of Technology (NJIT) under New Jersey’s Open Public Records Act, N.J. Stat. 47:1A-1–47:1A-13 (OPRA). Many of the NJIT documents originated with the FBI and were subject to prohibitions on public dissemination. The FBI directed NJIT to withhold most of the records. NJIT obliged, claiming exemption from disclosure. After this suit was filed, NJIT and the FBI reexamined the previously withheld records and produced thousands of pages of documents, formerly deemed exempt. Golden then sought prevailing plaintiff attorneys’ fees under OPRA. The district court denied the fee motion. The Third Circuit reversed. Under the catalyst theory, adopted by the Supreme Court of New Jersey, plaintiffs are entitled to attorneys’ fees if there exists “a factual causal nexus between [the] litigation and the relief ultimately achieved” and if “the relief ultimately secured by plaintiffs had a basis in law.” Before Golden filed suit, NJIT had asserted OPRA exemptions to justify withholding most of the requested records. Post-lawsuit, NJIT abandoned its reliance on those exemptions and produced most of the records. Golden’s lawsuit was the catalyst for the production of documents and satisfied the test. That NJIT withheld records at the behest of the FBI does not abdicate its role as the records custodian. View "Golden v. New Jersey Institute of Technology" on Justia Law