Justia Legal Ethics Opinion Summaries

On February 5, 2016, Governor Sam Brownback received statutorily required notice of District Magistrate Judge Tommy Webb’s departure from the bench. On June 15, 2016, three judges filed this petition for a writ of mandamus seeking a writ requiring the governor to immediately appoint an interim district magistrate judge for Haskall County. Specifically, Petitioner alleged that the governor failed to appoint a successor district magistrate judge in violation of Kan. Stat. Ann. 25-312a, which states that any “appointment made by the governor…shall be made within 90 days following receipt of notice….” The Supreme Court denied the petition for writ of mandamus, holding that the ninety-day time limit for the governor’s appointment of a district magistrate judge is directory rather than mandatory under precedent and is thus a discretionary act not subject to mandamus. View "Ambrosier v. Brownback" on Justia Law

The Permanent Quarry, a 3,510-acre surface mining operation producing limestone and aggregate for the manufacture of cement, is located in unincorporated Santa Clara County. The Quarry, owned by Lehigh, has been in existence since 1903. In 2011 the Santa Clara County Board of Supervisors enacted a resolution finding that the Quarry’s surface mining operations are a legal nonconforming use. A non-profit organization, No Toxic Air, sought a peremptory writ of mandate challenging the resolution. The trial court upheld the County’s resolution. The court granted No Toxic Air’s motion to strike the attorney and paralegal expenses Lehigh incurred to prepare the administrative record for the writ of mandate proceedings. Code of Civil Procedure section 1094.5(a) provides, “[i]f the expense of preparing all of any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.” The court of appeal reversed, holding that labor costs for attorneys and paralegals to prepare the administrative record are recoverable as expenses under that section. View "No Toxic Air, Inc. v. Lehigh SW Cement Co." on Justia Law

JAMS, Inc. provided private alternative dispute resolution services by promoting, arranging and handling the hiring of neutral individuals, such as retired judges, to assist with resolution of disputes. This action arose out of representations made on the JAMS Web site regarding the background of the Honorable Sheila Prell Sonenshine (Retired), and JAMS's operations in offering alternative dispute resolution (ADR) services. Kevin Kinsella alleged he relied upon certain representations made on the Web site when he agreed to stipulate to hire Sonenshine as a privately compensated judge to resolve issues related to his marital dissolution case and later discovered the representations were either untrue or misleading. JAMS and Sonenshine filed an anti-SLAPP motion to strike Kinsella's complaint. The court found the action exempt from the anti-SLAPP procedure under the commercial speech exemption of Code of Civil Procedure section 425.17, subdivision (c). JAMS and Sonenshine filed a petition for writ of mandate or other relief. The Court of Appeal stayed the proceedings and issued an order to show cause why relief should not be granted to allow the Court an opportunity to consider the issues raised in the petition related to the scope of the commercial speech exemption of section 425.17, subdivision (c). After consideration of the matter, the Court of Appeal agreed the commercial speech exemption applied and precluded the use of the anti-SLAPP procedure in this case. The petition was accordingly denied. View "JAMS, Inc. v. Super. Ct." on Justia Law

In December 2014, real party in interest Rito Tejeda was charged with murder. A year later, respondent Superior Court of Orange County assigned Tejeda’s case to Judge Thomas Goethals for all purposes and set the matter for a pre-trial hearing in Judge Goethals’ courtroom. That same day, the State moved to disqualify Judge Goethals pursuant to Code of Civil Procedure section 170.6. The declaration represented that Judge Goethals “is prejudiced against the party or the party’s attorney, or the interest of the party or party’s attorney, such that the declarant cannot, or believes that he/she cannot, have a fair and impartial trial or hearing before the judicial officer.” Later that day, the superior court denied the motion to disqualify Judge Goethals. The superior court took judicial notice of facts and events outside the scope of this particular case in supporting its conclusions: (1) the district attorney’s office was engaged in improper “‘blanket papering’” of Judge Goethals in murder cases; and (2) the effect of the blanket challenge was to “substantially disrupt[] the orderly administration of criminal justice in Orange County.” The State appealed the superior court's denial of its motion. The Court of Appeal reversed. "In our view [. . .'Solberg v. Superior Court' 19 Cal.3d 182 (1977)], anticipated circumstances very similar to those faced here. Rightly or wrongly, the Solberg court concluded the peremptory challenge at issue would not constitute a separation of powers violation. Because we are bound by the reasoning in Solberg, we must grant the petition for writ of mandate." View "California v. Superior Court (Tejeda)" on Justia Law

Attorney Donald Gilbert represented the Utah Down Syndrome Association and several of its founders in litigation between the Association and the Utah Down Syndrome Foundation, Inc. Gilbert filed this petition for extraordinary relief challenging (1) a 2008 district court judgment ordering Gilbert to disgorge $30,000 taken from Foundation bank accounts to pay his attorney fees, (2) an injunction that originally barred Gilbert’s clients from paying him with Foundation funds, (3) an order denying Gilbert’s motion to vacate the 2008 judgment, and (4) an order denying Gilbert’s motion for relief from the 2008 judgment. The Supreme Court denied Gilbert’s petition for extraordinary relief, holding (1) Gilbert unreasonably delayed seeking extraordinary relief from the injunction, the disgorgement order, and the denial of his motion to vacate; and (2) Gilbert failed to pursue the plain, speedy, and adequate remedy of direct appeal from the denial of his motion for relief from judgment. View "Gilbert v. Third Dist. Court Judges" on Justia Law

The Committee on Judicial Responsibility and Disability filed a report against Probate Judge Robert Nadeau. The Committee alleged that Judge Nadeau violated the Maine Code of Judicial Conduct based on statements he made in a letter to counsel regarding a court proceeding in which he was a party and based on his judge-related Internet and social media activity. The Supreme Judicial Court held that Judge Nadeau committed one actionable violation of the Code based on his statements to counsel. The Court imposed a public censure and reprimand and a thirty-day suspension from the performance of his duties as judge of the Probate Court. View "In re Robert M.A. Nadeau" on Justia Law

Fowler pleaded guilty in Indiana to unlawful possession of a firearm by a “serious violent felon” who was also a habitual offender. The judge sentenced him to 15 years’ imprisonment for the possession offense and 15 extra based on his criminal history. While his case was on appeal, the Supreme Court of Indiana held (Mills) that a prior conviction used to establish “serious violent felon” status cannot also be used to establish habitual offender status. Fowler’s appellate lawyer did not raise Mills before the appellate court, which affirmed his sentence. On collateral review, the same court held that Fowler’s plea bargain waived reliance on the approach that Mills adopted. Fowler then sought federal relief under 28 U.S.C. 2254, claiming ineffective assistance of counsel. The district court denied this petition, relying on the state judiciary’s conclusion that Fowler had waived the benefit of Mills. The Seventh Circuit vacated, noting that Judge Magnus-Stinson, who denied Fowler’s federal collateral attack, had also sentenced Fowler during her time on the state’s bench; 28 U.S.C. 455(a) requires the case to be heard by a different federal judge. Section 2254 is designed to ensure that a fresh pair of eyes looks at the matter, from a different perspective. View "Robertson v. Butts" on Justia Law

On behalf of Lightspeed, which operates websites purveying online pornography, attorneys Hansmeier, Steele, and Duffy sued a John Doe defendant in Illinois state court under the Computer Fraud and Abuse Act, 18 U.S.C. 1030, then served ex parte subpoenas, demanding that Internet service providers (ISPs), provide personally identifiable information of more than 6,600 “co‐ conspirators.” They filed similar actions in several states, apparently hoping to extract quick settlements from individuals whose personal information was revealed. The ISPs removed the Illinois case to federal court. Meanwhile, a California court imposed sanctions on the attorneys in a similar case; they began voluntarily dismissing cases. After the Lightspeed case was dismissed, a defendant sought attorney’s fees. The court imposed sanctions of $261,025.11, jointly and severally, against the attorneys. They failed to pay. The court scheduled a show‐cause hearing. The attorneys, who claimed insolvency, did not comply with interrogatories and requests for production. After the attorneys attempted to interfere with their financial institutions’ compliance with subpoenas, the court held them in contempt. The Seventh Circuit affirmed. The attorneys continued their "shenanigans." The Lightspeed defendants discovered efforts to hide assets; the district court again imposed contempt and discovery sanctions. The Seventh Circuit dismissed Hansmeier’s appeal, noted that Duffy is now deceased, and affirmed the discovery sanction, but vacated the contempt sanction for Steele. View "Lightspeed Media Corp. v. Smith" on Justia Law

This case started out of a business dispute between respondent-cross-petitioner Just In Case Business Lighthouse, LLC (JIC) and petitioner-cross-respondent Patrick Murray. To prepare for the litigation, JIC hired Preston Sumner, a businessman with knowledge of business sales and valuation, as an advisor. Sumner agreed to help with the case in exchange for a ten-percent interest in the case's outcome. Murray objected to Sumner's involvement in the case, arguing: (1) Sumner's interest in the case outcome was an improper payment violating Colorado Rule of Professional Conduce (RPC) 3.4(b); (2) Sumner lacked the requisite personal knowledge of the case's underlying events as required by Colorado Rule of Evidence (CRE) 602; and (3) the summary charts Sumner prepared were inadmissible under CRE 1006. The trial court ruled that Sumner could testify as a summary witness, but not as an expert or fact witness. Sumner testified and laid foundation for two of the summary exhibits, which the trial court admitted into evidence. The jury returned a verdict in favor of JIC. Murray renewed his arguments on appeal, and the Court of Appeals rejected them in part, and remanded for the trial court to determine whether Sumner's testimony should have been excluded as a sanction for JIC's violation of RPC 3.4(b). After review, the Colorado Supreme Court held that violation of the ethical rule did not displace the rules of evidence, and that trial courts retained discretion under CRE 403 to exclude testimony of improperly compensated witnesses. The trial court here did not abuse its discretion in declining to exclude Sumner's testimony. Further, the Court held that trial courts could allow summary witness testimony if they determine that the evidence was sufficiently complex and voluminous that the witness would assist the trier of fact. The Court held that the trial court did not abuse its discretion with respect to the summaries. Finding no reversible errors with the trial court's judgment, the Supreme Court reversed the appellate court's judgment remanding the case for consideration of whether Sumner's testimony should have been excluded. View "Murray v. Just In Case Bus. Lighthouse, LLC" on Justia Law

Plaintiff filed suit against the city, alleging claims for hostile work environment, quid pro quo, and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. 2000e et seq. On appeal, plaintiff challenged the district court's reduction of her attorney fee award. The district court concluded that the ratio between attorney’s fees and damages was excessively disproportionate. The court vacated the fee award and remanded for determination of a new fee award, concluding that there is no requirement of strict proportionality between attorney’s fees and damages. View "Combs v. City of Huntington" on Justia Law