Justia Legal Ethics Opinion Summaries

Clark sought attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d)(2)(A): $6,790.52 in fees for 34.75 attorney hours at an hourly rate of $176.13, plus 6.70 paralegal hours at an hourly rate of $100. The rate exceeded the $125 rate set by the EAJA. Clark argued that her counsel should receive a cost of living adjustment, based on the U.S. Bureau of Labor Statistics Consumer Price Index (CPI) for “Midwest Urban Consumers.” The agency requested that the court award fees at no more than $140, "the current reasonable and customary rate for experienced Social Security practitioners in the Western District of Kentucky." In her reply, Clark attached a declaration from her attorney, stating that he had practiced disability law from his Syracuse, New York, office for several years and provided his firm’s non-contingent hourly rate. Clark cited 2014 Sixth Circuit precedent, concluding that the requested rate of $176.13 was modest and appeared to be reasonable; she argued that other courts have held that the CPI alone was sufficient to justify a rate above the statutory cap. The district court awarded fees at an hourly rate of $140. The Sixth Circuit affirmed; there must be some understanding of the rates charged locally before a court can adjust for cost of living or other factors. View "Clark v. Commissioner of Social Security" on Justia Law

Federally-registered lobbyists sued the Secretary of Commerce and U.S. Trade Representative, alleging that federal policy barring registered lobbyists from serving on the Industry Trade Advisory Committees “attaches an unconstitutional condition on the exercise of the First Amendment right to petition [the government],” and “draws an unconstitutional distinction between those who exercise their right to petition the government and those who do not.” The D.C. Circuit remanded after dismissal. Before the district court ruled on remand, the Office of Management and Budget revised the ban to apply only to lobbyists who serve on advisory committees in an individual capacity and the Department of Commerce issued an amended “Request for Nominations for the Industry Trade Advisory Committees.” The parties stipulated to dismissal, with lobbyists stating their intention to seek attorneys’ fees. The court denied that application under the Equal Access to Justice Act, 28 U.S.C. 2412, reasoning that the remand did not ensure the lobbyists would enjoy a substantive victory, so they were not “prevailing parties.” The D.C. Circuit affirmed, noting that its earlier remand specified that dismissal might still be appropriate depending on the court’s analysis of whether the government’s interest in imposing the lobbyist ban “outweighs any impingement on Appellants’ constitutional rights.” View "Autor v. Pritzker" on Justia Law

Following a request from ICP, Customs issued a Ruling Letter, classifying ICP’s white sauce as “sauces and preparations therefor” under the Harmonized Tariff Schedule of the United States (HTSUS) 2103.90.9060. Years later, Customs issued a Notice of Action reclassifying pending and future entries of white sauce as “[b]utter and . . . dairy spreads” under HTSUS 0405.20.3000, which increased the tariff by approximately 2400%. After protesting and paying duties on a single entry, ICP filed a claim in the Court of International Trade, alleging the Notice of Action improperly revoked the Ruling Letter without following the procedures required by 19 U.S.C. 1625(c). Since ICP filed its first action in 2005, the CIT has issued five separate opinions on the matter, two of which were appealed to the Federal Circuit. In awarding ICP attorney fees, the Trade Court found that “The record ... establishe[d] that the goverment position was rooted in a desire to avoid the timely revocation process” by using the Notice of Action, rather than following the procedures of 1625(c)(1). The Federal Circuit affirmed the award under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A), upholding the Trade Court’s analysis of whether the government’s conduct was “substantially justified.” View "International Custom Products, Inc. v. United States" on Justia Law

Coursey’s application for Social Security benefits was denied. He sought judicial review. The district court granted a joint motion to reverse the decision. Coursey sought attorney fees. Although the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412, sets the presumptive maximum hourly rate an attorney may recover at $125. Coursey sought $185.18 per hour. Coursey submitted the Bureau of Labor Statistics’ Consumer Price Index (CPI), which documents that the statutory amount would, when adjusted for the cost of living in the Midwest in 2015, be the equivalent of $185.18. The court concluded that the CPI and the attorney's affidavit were insufficient to justify the requested rate and approved an award of $140 per hour, consistent with recent cases in the district awarding that amount for EAJA attorney-fee requests in Social Security cases. The Sixth Circuit affirmed. A plaintiff seeking an attorney’s fee of greater than $125 per hour must show by competent evidence that the cost of living justifies a higher rate and that the fee is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” The court properly relied on evidence, judicial findings in previous cases, that the prevailing market rate for similar services within its venue was $140 per hour. View "Coursey v. Commissioner of Social Security" on Justia Law

Appellants-attorneys Shawn Fitzpatrick and Timothy Flocos were sanctioned by the district court for certifying that their clients’ initial disclosures under Federal Rule of Civil Procedure 26(a)(1) were complete and correct even though the disclosures failed to mention evidence that Appellants later used during a deposition. Appellants appealed, asking the Fifth Circuit to reverse the district court’s decision and remit to them the monetary sanctions collected by the district court. Appellants argued that they used two recordings solely to impeach a witness' credibility; therefore, they were not required to disclose the recordings under Rule 26(a)(1). Appellants also argued that the district court failed to properly consider whether their decision to withhold the evidence at issue from the initial disclosures was substantially justified. Finding no reversible error in the district court's decision to sanction appellants, the Fifth Circuit affirmed. View "Olivarez v. GEO Group, Inc., et al" on Justia Law

Todd Hill, Roy Hill, Brian Hill, and Debra Hill Stewart were the children of Leroy Hill, who died testate in 2009. Deborah D. Hill, Leroy’s second wife, offered Leroy's will for probate. The Hill children hired attorneys Vincent Kilborn III and David McDonald to bring a breach-of-contract action against the estate and Deborah, alleging breach of an agreement between Leroy and the Hills' mother at the time Leroy divorced the Hills' mother in 1984 to make a will leaving the Hills a coffee company and a family ranch. The Hills and the attorneys entered into a retainer agreement, which required the Hills to pay the attorneys "40% of any recovery, in the event there is a recovery, with or without suit." According to the agreement, "recovery" included cash, real or personal property, stock in the Leroy Hill Coffee Company, and all or part ownership in the family ranch. After a trial, a judgment was entered for the Hills ordering specific performance of the contract, which required the conveyance of the coffee company and the ranch to the Hills. The Alabama Supreme Court affirmed the trial court's judgment, without an opinion. At issue before the Supreme Court involved the attorney fee. The Supreme Court found that the circuit court exceeded the scope of its discretion when it failed to order the payment of the attorney fee in accordance with the retainer agreement. The Hills petitioned for a writ of mandamus to direct the circuit court to vacate two order for lack of subject-matter jurisdiction. Specifically, they argued that the circuit court did not have jurisdiction to determine the 40% contingency fee owed the attorneys was an administrative expense of the estate and, consequently, that the circuit court did not have subject-matter jurisdiction when any subsequent order at issue in this case. The Supreme Court concluded the circuit court had jurisdiction over the administration of the estate, so the petition for a writ of mandamus (case no. 1150162) was denied; the orders pertaining to payment of the retainer were reversed (case no. 1150148) and the matter remanded for further proceedings. View "Hill v. Kruse" on Justia Law

The Individuals with Disabilities Education Act (IDEA), intended “to ensure that all children with disabilities have available to them a free appropriate public education,” 20 U.S.C. 1400(d)(1)(A), permits parents and legal guardians to recover reasonable attorneys’ fees and costs if they prevail in certain statutorily prescribed proceedings. In calculating a fee award, courts consider the “number of hours reasonably expended in litigation” and the “reasonable hourly rate,” determined in part by reference to the prevailing market rate for attorneys’ services. The plaintiffs, having prevailed in IDEA proceedings, sought attorneys’ fees and costs related to those proceedings and an award of “fees-on-fees” for work done in connection with their pursuit of fees for the IDEA proceedings. The district court granted both requests, but did not award the full amounts requested. The D.C. Circuit reversed in part, agreeing that the district court erred in excluding certain hours spent at “settlement conferences.” The court upheld determinations that the IDEA matters were not “complex federal litigation” to which the Laffey Matrix should apply and to apply the same rate to the initial fee and fees-on-fees awards. Plaintiffs forfeited claims raised for the first time on appeal: that their affidavits independently demonstrated a prevailing IDEA market rate that aligns with the Laffey Matrix and that the rates awarded were insufficient to attract competent counsel. View "Reed v. District of Columbia" on Justia Law

In 2004, Nelms retained Katz-Crank, a Michigan lawyer with a practice in cemetery management, to assist in his acquisition of cemeteries and funeral homes in Indiana, Michigan, and Ohio. Trust funds associated with these cemeteries were valued at about $22 million. In 2007 Katz‐Crank learned that Nelms was under investigation by the Indiana Secretary of State for misappropriating cemetery trust assets. Katz‐Crank called Haskett, an investigator in that office, to offer cooperation. Haskett did not return the call. In 2008, Nelms was indicted for embezzling $22 million, pleaded guilty, and agreed to testify against Katz‐Crank. Haskett called some of Katz‐Crank’s clients and stated that Katz‐Crank was under criminal investigation. The Secretary of State and the Marion County prosecutor’s office issued press releases publicizing Katz-Crank’s arrest. A jury acquitted Katz‐Crank. Two years later Katz‐Crank sued Marion County and officials who were involved in her investigation and prosecution, under 42 U.S.C. 1983, for malicious prosecution, abuse of process, and violation of the Fourth and Fourteenth Amendments, with three federal conspiracy claims and state‐law claims for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The district judge rejected all claims. The Seventh Circuit affirmed. Most of Katz‐Crank’s claims were barred by the Eleventh Amendment or prosecutorial immunity; the rest were properly dismissed for failure to state a plausible claim. View "Katz-Crank v. Haskett" on Justia Law

Plaintiff filed suit against the former attorneys who had represented her in a personal injury action. Plaintiff alleged eight causes of action arising from alleged misconduct during the course of the parties’ attorney-client relationship. The trial court sustained defendants’ demurrer to plaintiff’s operative first amended complaint on the basis of the statute of limitations. The court concluded that all of plaintiff's causes of action are time-barred as a matter of law. Accordingly, the court affirmed the judgment. View "Foxen v. Carpenter" on Justia Law

Doctors replaced Dobbs’s hip with a DePuy ASR artificial hip, which was defective and caused Dobbs pain and other problems. Dobbs hired McLaughlin to represent him in the DePuy ASR Hip Implant Multidistrict Litigation for a 35 percent contingency fee. A year later, DePuy proposed a “Global Settlement,” offering represented parties $250,000 and unrepresented parties $165,000. McLaughlin advised Dobbs to accept the offer because going to trial would be expensive, time consuming, and risky. Dobbs stated that he wanted to register for the settlement but that he did not want to “waive any rights to a trial,” or “be forced to accept the present settlement offer.” Dobbs moved to remove McLaughlin. McLaughlin acknowledged that he no longer represented Dobbs and withdrew as counsel. Acting pro se, Dobbs accepted the settlement; because he was considered “represented,” Dobbs received $250,000. McLaughlin asserted a lien on the award and sought attorneys’ fees under a quantum meruit theory. The district court held that the full contingency fee was a reasonable award. The Seventh Circuit vacated. The court listed the factors relevant to quantum meruit under Illinois law, but did not consider evidence related to the factors. The only factor specifically addressed was that Dobbs “undoubtedly benefitted” from McLaughlin’s work. The court did not analyze: how many hours McLaughlin spent on Dobbs’s case; the difficulty of the underlying claim; the ordinary charge for such work; or McLaughlin’s skill and standing. View "Dobbs v. McLaughlin" on Justia Law