Justia Legal Ethics Opinion Summaries

Plaintiff filed suit challenging Louisiana law that forces lawyers to join and pay annual dues to the Louisiana State Bar Association (LSBA). Plaintiff contends that compelling dues and membership violates his First Amendment rights, and that LSBA's failure to ensure that his dues are not used to fund the Bar's political and ideological activities also violates his First Amendment rights.The Fifth Circuit reversed the district court's dismissal of plaintiff's claims. The court concluded that Lathrop v. Donahue, 367 U.S. 820 (1961), and Keller v. State Bar of California, 496 U.S. 1 (1990), foreclose plaintiff's challenge to mandatory membership in LSBA. In this case, plaintiff's claim presents the (previously) open free association question from Keller (which the court closed today in this circuit with the court's concurrently issued opinion in McDonald v. Longley, No. 20-50448, __ F.3d __ (5th Cir. 2021)). The court also concluded that the Tax Injunction Act does not preclude federal courts from exercising jurisdiction over plaintiff's challenge to mandatory dues. The court explained that the bar dues are a fee, not a tax, and thus dismissal under the Act was improper. Finally, the court concluded that plaintiff has standing to pursue his claim that LSBA does not employ adequate procedures to safeguard his dues. The court found that plaintiff has pleaded an injury-in-fact by alleging that LSBA does not regularly provide notice of its expenditures with sufficient specificity. Accordingly, the court remanded for further proceedings. View "Boudreaux v. Louisiana State Bar Ass'n" on Justia Law

Plaintiffs, three Texas attorneys, filed suit against officers and directors of the State Bar of Texas under 42 U.S.C. 1983, alleging that the Bar is engaged in political and ideological activities that are not germane to its interests in regulating the legal profession and improving the quality of legal services. Plaintiffs therefore allege that compelling them to join the Bar and subsidize those activities violates their First Amendment rights. The district court granted summary judgment to the Bar.As a preliminary matter, the Fifth Circuit concluded that the Tax Injunction Act did not strip the district court of jurisdiction where neither membership fees and legal services fees are taxes. On the merits, the court vacated the district court's judgment, concluding that the district court erred in its reading of Lathrop v. Donahue, 367 U.S. 820 (1961), and Keller v. State Bar of California, 496 U.S. 1 (1990), and in its application of Keller's germaneness test on the Bar's activities. The court explained that Lathrop held that lawyers may constitutionally be mandated to join a bar association that solely regulates the legal profession and improves the quality of legal services; Keller identified that Lathrop did not decide whether lawyers may be constitutionally mandated to join a bar association that engages in other, nongermane activities; but Keller did not resolve that question. To determine whether compelling plaintiffs to join a bar that engages in non-germane activities violates their freedom of association, the court must decide (1) whether compelling plaintiffs to join burdens their rights and, (2) if so, whether it is nevertheless justified by a sufficient state interest.The court explained that plaintiffs are entitled to summary judgment on their freedom-of-association claim if the Bar is in fact engaged in non-germane activities. In this case, the Bar's legislative program is neither entirely germane nor wholly non-germane; the Bar's various diversity initiatives through OMA, though highly ideologically charged, are germane to the purposes identified in Keller; most, but not quite all, of the Bar's activities aimed at aiding the needy are germane; and miscellaneous activities—hosting an annual convention, running CLE programs, and publishing the Texas Bar Journal—are all germane. In sum, the Bar is engaged in non-germane activities, so compelling plaintiffs to join it violates their First Amendment rights. Furthermore, there are multiple other constitutional options. Assuming, arguendo, that plaintiffs can be required to join the Bar, compelling them to subsidize the Bar's non-germane activities violates their freedom of speech. The court also concluded that the Bar's procedures for separating chargeable from non-chargeable expenses is constitutionally inadequate under Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986).Accordingly, the court rendered partial summary judgment in favor of plaintiffs and remanded to the district court to determine the full scope of relief to which plaintiffs are entitled. The court additionally reversed the denial of plaintiffs' motion for a preliminary injunction and rendered a preliminary injunction preventing the Bar from requiring plaintiffs to join or pay dues pending completion of the remedies phase. View "McDonald v. Longley" on Justia Law

The Sellers bought an Oakland property to “flip.” After Vega renovated the property, they sold it to Vera, providing required disclosures, stating they were not aware of any water intrusion, leaks from the sewer system or any pipes, work, or repairs that had been done without permits or not in compliance with building codes, or any material facts or defects that had not otherwise been disclosed. Vera’s own inspectors revealed several problems. The Sellers agreed to several repairs Escrow closed in December 2011, but the sewer line had not been corrected. In January 2012, water flooded the basement. The Sellers admitted that earlier sewer work had been completed without a permit and that Vega was unlicensed. In 2014, the exterior stairs began collapsing. Three years and three days after the close of escrow, Vera filed suit, alleging negligence, breach of warranty, breach of contract, fraud, and negligent misrepresentation. Based on the three-year limitations period for actions based on fraud or mistake, the court dismissed and, based on a clause in the purchase contract, granted SNL attorney’s fees, including fees related to a cross-complaint against Vera’s broker and real estate agent.The court of appeal affirmed. Vera’s breach of contract claim was based on fraud and the undisputed facts demonstrated Vera’s claims based on fraud accrued more than three years before she filed suit. Vera has not shown the court abused its discretion in awarding fees related to the cross-complaint. View "Vera v. REL-BC, LLC" on Justia Law

Linda and her husband Milton set up an estate plan with the help of attorney Roth. Milton created a trust and designated himself as sole trustee. Upon his death, Linda and his accountant, Sanders, would become cotrustees. Milton’s assets included a $1.5 million Vanguard account. Milton later changed the Vanguard account and other accounts to transfer on death directly to Linda as the sole primary beneficiary. Milton died in 2016. Linda believed that Roth was still her attorney. Roth and Sanders convinced Linda to waive her rights as co-trustee and to disclaim her interest in the Vanguard account; they suggested that she had acquired these interests through wrongdoing. Roth then transferred the disclaimed Vanguard account directly to Milton’s son, David, instead of to the trust. David sued Linda and obtained an Indiana state court judgment that she exerted undue influence on Milton and that the trust was the proper owner of certain assets Milton had transferred to Linda.Linda sued in federal court, asserting fraud, conspiracy, and malpractice against Roth and Sanders, claiming the two “duped” her into disclaiming certain assets and that Roth committed malpractice by transferring the account to David rather than the trust. The Seventh Circuit affirmed the dismissal of the suit; issue preclusion based on the Indiana judgment foreclosed Linda’s claims because the Indiana jury’s finding of undue influence showed that Roth and Sanders’s advice to disclaim her illegally-obtained interests was neither negligent nor fraudulent. View "Bergal v. Roth" on Justia Law

The Ninth Circuit affirmed the district court's order denying plaintiff's request for attorney's fees after his successful Freedom of Information Act (FOIA) action seeking to obtain redacted information from the FBI regarding a 2016 search warrant. The search warrant investigated then-Secretary of State Hillary Clinton's email practices. Although plaintiff was a prevailing party eligible for attorney's fees under FOIA, the district court denied fees after balancing the four factors that inform the entitlement inquiry.The panel applied a deferential standard of review, concluding that the district court reasonably concluded that the FBI reasonably based its nondisclosure on the SDNY sealing order, and the district court also acted within its discretion in balancing the four entitlement factors. The panel explained that, whether obligated or acting out of comity for another branch of government, the FBI was reasonable to think the SDNY sealing order limited its ability to disclose information to plaintiff. Because the FBI's reliance on the SDNY sealing order was reasonable, the panel concluded that the district court's conclusion was reasonable too. The panel also concluded that the district court acted within its discretion in denying fees even though the first three factors favored fees and only the fourth disfavored fees. View "Schoenberg v. Federal Bureau of Investigation" on Justia Law

Fuston, Petway & French, LLP ("the Firm"), appealed the grant of summary judgment entered in favor of The Water Works Board of the City of Birmingham ("the Board") regarding the Board's termination of a contract between the parties. In September 2015, the Firm and the Board entered into a one-year contract in which the Firm agreed to provide legal representation for the Board. In 2016, the Firm and the Board entered into negotiations for a new contract. The chairman of the Board approached the Firm regarding the Board's need to have independent oversight and review of a program designed to attract "historically underutilized business entities" ("the HUB program"). Board meeting minutes at the end of 2016 reflected that the contract was approved. The contract between the Firm and the Board provided, in pertinent part, that the Firm would administer a Contract Compliance Program for the HUB program. Before the contract expired, the Board elected to terminate its contract with the Firm. The Firm sued for breach of contract and other theories. In its judgment, the trial court found, among other things, that the entirety of the Firm's obligations in the contract entailed legal services and that, as a result, the contract was terminable by the Board at any time. After review of the Firm's arguments appealing the trial court judgment, the Alabama Supreme Court found no reversible error and affirmed. View "Fuston, Petway & French, LLP v. Water Works Board of the City of Birmingham" on Justia Law

The government moved to compel the testimony of an attorney who worked for the corporate body running the campaign for a former candidate for public office. The attorney sought to invoke the attorney-client privilege over his communications with the candidate and the campaign regarding the subject of the subpoena—certain financial disclosure forms filled out by the campaign and a number of purchases paid for by the campaign's bank accounts. The district court granted in part the government's motion to compel and denied the campaign's motion to quash.The Eleventh Circuit affirmed, concluding that the communications at issue fall within the crime-fraud exception to the attorney-client privilege. In this case, the court concluded that the government has presented a prima facie case of wire fraud and that the district court therefore did not abuse its discretion in finding that the government satisfied its burden under the first prong of the crime-fraud exception. Furthermore, after making the personal expenditures at issue, but before filing his financial disclosure forms, the candidate sought or obtained legal advice from the attorney regarding his obligations under Georgia law. Therefore, the communications at issue are sufficiently in furtherance of the crime of wire fraud to justify the piercing of the privilege. View "In re: Grand Jury Subpoena" on Justia Law

Plaintiff filed suit against McCullough for malicious prosecution. In 2018, the Court of Appeal reversed an order denying McCullough's anti-SLAPP motion and ordered the trial court to issue a fee award pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1). This appeal stems from the attorney fees award of $146,010 to McCullough.The Court of Appeal affirmed the trial court's attorney fee order, concluding that the trial court properly determined the reasonable market value of the attorneys' services. The court explained that the trial court has discretion to award an hourly rate under the lodestar method that exceeds the rate that was actually incurred or paid. In this case, the trial court properly determined that the market rate for experienced appellate lawyers in Los Angeles County and exercised its discretion to not so narrowly focus on the package rate agreed to in this matter. Furthermore, the court could not conclude, in these circumstances, that the award of attorney fees shocks the conscience or suggests that passion and prejudice had part in it. View "Pasternack v. McCullough" on Justia Law

In 2019, the television program CBS This Morning broadcast interviews with two women who accused Fairfax, the Lieutenant Governor of Virginia, of sexual assault. Fairfax had previously denied the allegations. Although he admitted that both sexual encounters occurred, he claimed they were entirely consensual. The CBS interviewer, Gayle King read from a statement Fairfax had given CBS denying the allegations. King directed viewers to Fairfax’s full statement on CBS’s website. Fairfax later issued a public letter to a North Carolina district attorney, alleging for the first time the existence of an eyewitness. Fairfax demanded that CBS retract the interviews, and CBS refused. Fairfax sued CBS for defamation and intentional infliction of emotional distress. The district court dismissed the complaint in its entirety but denied CBS’s motion for attorney’s fees and costs finding that CBS established its entitlement to statutory immunity under Virginia’s anti-SLAPP (strategic lawsuit against public participation) statute.The Fourth Circuit affirmed. Fairfax’s complaint fails to plausibly allege that CBS made the allegedly defamatory statements with knowledge or reckless disregard of their falsity, as required to state a claim for defamation of a public official. The fee-shifting statute is discretionary, not mandatory or presumptive. Fairfax’s allegations did not plausibly allege that CBS broadcast its This Morning programs despite entertaining “serious doubts as to the truth” of those broadcasts. View "Fairfax v. CBS Corp." on Justia Law

The Georgia Supreme Court granted certiorari to consider whether the Court of Appeals properly identified the accrual date of the legal malpractice claim in this case. The court determined that the accrual date for the malpractice action based on failure to protect an underinsured motorist (“UM”) claim was the date on which the plaintiff’s attorney first became aware that the plaintiff potentially had a UM claim with available coverage. Under the facts of this case, the Supreme Court disagreed, holding that the accrual date was the last day counsel could protect the client’s UM claim by lawfully effecting service on the UM carrier. View "Armstrong et al. v. Cuffie et al." on Justia Law