Justia Legal Ethics Opinion Summaries

Zenor was employed by the Nevada Department of Transportation (NDOT) when he injured his wrist on the job. Eleven months later, Zenor underwent an examination and received an evaluation by his treating physician, Dr. Huene, who determined Zenor was not yet capable of performing his pre-injury job duties. Two months later, Dr. Huene again examined Zenor and determined he could fully use his wrist with a brace as needed. Less than one month later, Dr. Huene released Zenor "without limitations." Zenor delivered the full release to NDOT that same day. NDOT nonetheless commenced proceedings and separated him from employment for medical reasons. An administrative hearing officer reversed. The district court affirmed. Zenor sought attorney fees under NRS 18.010(2)(b) on the ground that NDOT unreasonably brought its petition to harass him. The court held that NRS 233B.130 prohibited attorney fees in a judicial action of a final agency decision. The Nevada Supreme Court affirmed. NRS 233B.130(6), which states that the provisions of NRS Chapter 233B provide the exclusive means of judicial action in a petition for judicial review, prohibits an award of attorney fees under NRS 18.010(2)(b) in petitions for judicial review. View "Zenor v. State of Nevada Department of Transportation" on Justia Law

The Dezzanis own a condominium and are members of the Homeowners' Association (HOA). Kern, an attorney, represents the HOA and advises its governing board. In a dispute regarding an extended deck on the Dezzani unit, the board issued a notice of violation with drafting assistance from Kern. Kern notified the Dezzanis that she represented the HOA. Kern and the Dezzanis exchanged several letters. The board held a hearing and upheld the notice. Throughout this time, Kern advised the HOA regarding the Dezzanis' and other members' deck extensions. The Dezzanis filed suit against Kern under NRS 116.31183, which allows a unit owner to bring a separate action for damages, attorney fees, and costs when an “executive board, a member of an executive board, a community manager or an officer, employee or agent of an association" takes retaliatory action against a unit's owner. The Nevada Supreme Court affirmed the dismissal of their action, noting that the Dezzanis did not specify how Kern retaliated against them. An attorney is not an "agent" under NRS 116.31183 for claims of retaliatory action where the attorney is providing legal services for a common-interest community homeowners' association. In a consolidated case, the court held that attorneys litigating pro se and/or on behalf of their law firms cannot recover fees because those fees were not actually incurred by the attorney or the law firm, but they can recover taxable costs in the action. View "Dezzani v. Kern & Associates, Ltd." on Justia Law

The Dezzanis own a condominium and are members of the Homeowners' Association (HOA). Kern, an attorney, represents the HOA and advises its governing board. In a dispute regarding an extended deck on the Dezzani unit, the board issued a notice of violation with drafting assistance from Kern. Kern notified the Dezzanis that she represented the HOA. Kern and the Dezzanis exchanged several letters. The board held a hearing and upheld the notice. Throughout this time, Kern advised the HOA regarding the Dezzanis' and other members' deck extensions. The Dezzanis filed suit against Kern under NRS 116.31183, which allows a unit owner to bring a separate action for damages, attorney fees, and costs when an “executive board, a member of an executive board, a community manager or an officer, employee or agent of an association" takes retaliatory action against a unit's owner. The Nevada Supreme Court affirmed the dismissal of their action, noting that the Dezzanis did not specify how Kern retaliated against them. An attorney is not an "agent" under NRS 116.31183 for claims of retaliatory action where the attorney is providing legal services for a common-interest community homeowners' association. In a consolidated case, the court held that attorneys litigating pro se and/or on behalf of their law firms cannot recover fees because those fees were not actually incurred by the attorney or the law firm, but they can recover taxable costs in the action. View "Dezzani v. Kern & Associates, Ltd." on Justia Law

Doe sought lawful permanent residence in the U.S. under the EB-5 visa program, which requires applicants to invest in a new U.S. commercial enterprise, 8 U.S.C. 1153(b)(5)(A). Doe invested $500,000 in Elgin Assisted Living EB-5 Fund, to build and operate a memory care facility. The U.S. Citizenship and Immigration Services denied Doe’s petition because the facility had not been built since it was proposed in 2011. Doe filed suit. The court granted the government summary judgment. Doe is represented by the three-attorney Kameli Law Group. Floss, an associate, is Doe’s counsel of record. Kameli is the firm’s principal. While briefing was underway, the Securities and Exchange Commission filed suit, accusing Kameli of defrauding 226 immigrants who invested over $88 million. Kameli allegedly misappropriated the memory care center's funds. The Seventh Circuit disqualified the firm from Doe’s appeal. The Illinois Rules of Professional Conduct prohibit representation if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest.” Neither of Kameli's conflicts can be waived by informed client consent. It “strains credulity to think that Kameli would be diligent.” Kameli would not advise Doe to allege fraud and seek reconsideration of the USCIS decision. Kameli also has divided obligations to his investor-clients, which create an unacceptably high risk of materially limiting Doe’s representation by Floss. View "Doe v. Nielsen" on Justia Law

Doe sought lawful permanent residence in the U.S. under the EB-5 visa program, which requires applicants to invest in a new U.S. commercial enterprise, 8 U.S.C. 1153(b)(5)(A). Doe invested $500,000 in Elgin Assisted Living EB-5 Fund, to build and operate a memory care facility. The U.S. Citizenship and Immigration Services denied Doe’s petition because the facility had not been built since it was proposed in 2011. Doe filed suit. The court granted the government summary judgment. Doe is represented by the three-attorney Kameli Law Group. Floss, an associate, is Doe’s counsel of record. Kameli is the firm’s principal. While briefing was underway, the Securities and Exchange Commission filed suit, accusing Kameli of defrauding 226 immigrants who invested over $88 million. Kameli allegedly misappropriated the memory care center's funds. The Seventh Circuit disqualified the firm from Doe’s appeal. The Illinois Rules of Professional Conduct prohibit representation if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest.” Neither of Kameli's conflicts can be waived by informed client consent. It “strains credulity to think that Kameli would be diligent.” Kameli would not advise Doe to allege fraud and seek reconsideration of the USCIS decision. Kameli also has divided obligations to his investor-clients, which create an unacceptably high risk of materially limiting Doe’s representation by Floss. View "Doe v. Nielsen" on Justia Law

Intervening defendants could not be required to pay a portion of prevailing plaintiffs' attorneys fees and costs, awarded under 42 U.S.C. 1988(b) and 52 U.S.C. 10310(e), when intervening defendants were not charged with any wrongdoing and could not be held liable for the relief that plaintiffs sought. In Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), the Supreme Court precluded the assessment of attorneys fees and costs against intervenors who were "blameless," meaning that they were not charged as wrongdoers and legal relief could not have been obtained from them. In this racial gerrymandering case, the Fourth Circuit held that Zipes was controlling and that the Commonwealth could not be held liable for attorneys fees and costs incurred by plaintiffs in litigating against the entry of Intervening Congressmen or against Intervening Congressmen's positions. Under the traditional American rule, plaintiffs must bear those intervention-related fees. Accordingly, the court vacated the district court's order awarding attorneys fees and costs, remanding for reconsideration of plaintiffs' petitions for fees. View "Brat v. Personhuballah" on Justia Law

Intervening defendants could not be required to pay a portion of prevailing plaintiffs' attorneys fees and costs, awarded under 42 U.S.C. 1988(b) and 52 U.S.C. 10310(e), when intervening defendants were not charged with any wrongdoing and could not be held liable for the relief that plaintiffs sought. In Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), the Supreme Court precluded the assessment of attorneys fees and costs against intervenors who were "blameless," meaning that they were not charged as wrongdoers and legal relief could not have been obtained from them. In this racial gerrymandering case, the Fourth Circuit held that Zipes was controlling and that the Commonwealth could not be held liable for attorneys fees and costs incurred by plaintiffs in litigating against the entry of Intervening Congressmen or against Intervening Congressmen's positions. Under the traditional American rule, plaintiffs must bear those intervention-related fees. Accordingly, the court vacated the district court's order awarding attorneys fees and costs, remanding for reconsideration of plaintiffs' petitions for fees. View "Brat v. Personhuballah" on Justia Law

Itron alleged that misrepresentations by three of SmartSynch's corporate officers (defendants) caused it unknowingly to assume an unwanted $60 million contractual obligation to a third party, Consert. Itron eventually settled Consert's claims and then filed suit against defendants for negligent misrepresentation. The magistrate judge ordered Itron to produce, without qualification, materials that were shielded from disclosure by the attorney-client privilege. The Fifth Circuit granted Itron's petition for mandamus and vacated the magistrate judge's order, holding that the mere act of filing the lawsuit effected no waiver of any attorney-client privilege. The court remanded with instructions to reevaluate defendants' motion. View "In Re: Itron, Inc." on Justia Law

Itron alleged that misrepresentations by three of SmartSynch's corporate officers (defendants) caused it unknowingly to assume an unwanted $60 million contractual obligation to a third party, Consert. Itron eventually settled Consert's claims and then filed suit against defendants for negligent misrepresentation. The magistrate judge ordered Itron to produce, without qualification, materials that were shielded from disclosure by the attorney-client privilege. The Fifth Circuit granted Itron's petition for mandamus and vacated the magistrate judge's order, holding that the mere act of filing the lawsuit effected no waiver of any attorney-client privilege. The court remanded with instructions to reevaluate defendants' motion. View "In Re: Itron, Inc." on Justia Law

Murphy was awarded a judgment in his federal civil rights suit against two prison guards, including an award of attorney’s fees; 42 U.S.C. 1997e(d)(2) provides that in such cases “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.” The district court ordered Murphy to pay 10% of his judgment toward the fee award, leaving defendants responsible for the remainder. The Seventh Circuit reversed, holding that section 1997e(d)(2) required the district court to exhaust 25% of the prisoner’s judgment before demanding payment from the defendants. The Supreme Court affirmed. The mandatory phrase “shall be applied” suggests that the district court has some nondiscretionary duty to perform. The infinitival phrase “to satisfy the amount of attorney’s fees awarded” specifies the purpose of the preceding verb’s nondiscretionary duty and “to satisfy” an obligation, especially a financial obligation, usually means to discharge the obligation in full. The district court does not have wide discretion to pick any “portion” that does not exceed the 25% cap. This conclusion is reinforced by section 1997e(d)’s surrounding provisions, which also limit the district court’s pre-existing discretion under section 1988(b). View "Murphy v. Smith" on Justia Law