Justia Civil Procedure Opinion Summaries

After a conflict of interest between an attorney and a long-time client arose during settlement negotiations, the attorney filed a confidential motion with the superior court criticizing his client. The client discharged the attorney and hired new counsel. But the attorney continued to control the settlement funds and disbursed himself his fee, even though the amount was disputed by the client. The court found that the attorney’s actions had violated the rules of professional conduct and ordered forfeiture of most of his attorney’s fees. Finding no reversible error in the superior court's order, the Alaska Supreme Court affirmed. View "Kenneth P. Jacobus, P.C. v. Kalenka" on Justia Law

Richard and Debra Plein sued USAA Casualty Insurance Company, alleging insurance bad faith. The Pleins hired three attorneys, two of whom were members of the Keller Rohrback LLP lawfirm (Keller), to represent them. But Keller had previously defended USAA in bad faith litigation for over 10 years. Under the Rules of Professional Conduct, Keller would have been barred from representing the Pleins if the prior representation was in a matter "substantially related" to the Plein matter. Interpreting the "substantially related" language in the Rules of Professional Conduct was one of first impression for the Washington Supreme Court. The Court held that under RPC 1.9(a), USAA failed to show a "substantial risk" that Keller obtained 'confidential factual information" that would 'materially advance" the Pleins’ case. Accordingly, Keller did not represent former client USAA on any matter "substantially related" to the instant case. The Court therefore reversed the Court of Appeals decision that disqualification was required, and reinstated the trial court’s order that disqualification was not required. View "Plein v. USAA Cas. Ins. Co." on Justia Law

Nguyen worked as a dentist until she was terminated. Nguyen hired attorney Ford, who filed a discrimination lawsuit. The federal district court entered judgment against Nguyen. Ford’s retainer agreement with Nguyen specifically excluded appeals. Nguyen hired Ford to represent her in an appeal and signed a separate retainer agreement. Nguyen alleges that during the appeal to the Ninth Circuit, Ford charged exorbitant fees and costs, and caused unnecessary delays. In April 2015, Ford successfully moved to withdraw as counsel. The Ninth Circuit affirmed the judgment against Nguyen. Nguyen sued Ford for legal malpractice and breach of fiduciary duty, stating “Although [Ford] continued to represent [Nguyen] in the district court tribunal, [Nguyen] had to retain new appellate counsel” and that, but for Ford’s untimely filing of a brief in the district court case, summary judgment would not have been granted against her.The trial court dismissed the action as untimely (Code Civ. Proc., 340.6(a)). The court of appeal affirmed. No reasonable factfinder could conclude it was objectively reasonable for Nguyen to believe Ford continued to represent her in the district court action. Once Ford filed notices in that case describing herself as Nguyen’s former attorney and stating she was placing a lien for on any judgment in Nguyen’s favor, any objectively reasonable client would have understood that Ford was no longer representing Nguyen. View "Nguyen v. Ford" on Justia Law

Roger Feltman and TRRP LLC (Feltman) appeal a district court judgment dismissing their malpractice lawsuit against attorney Daniel Gaustad and the Pearson, Christensen & Clapp law firm (Gaustad). The court concluded summary judgment was appropriate because Feltman failed to establish a factual dispute as to the elements of legal malpractice. Finding no reversible error in that decision, the North Dakota Supreme Court affirmed judgment. View "Feltman, et al. v. Gaustad, et al." on Justia Law

Nelson, a California attorney specializing in asbestos defense, was employed by Tucker. Tucker’s personnel handbook stated that all documents, including email and voicemail, received, created, or modified by any attorney are Tucker's property. In 2008, Nelson exchanged e-mails with Gradient, a scientific consult on litigation, about medical research articles relating to causes of mesothelioma. Counsel in a Kentucky litigation matter served Tucker with a subpoena seeking documents related to payments made by Tucker to Gradient to fund medical research articles and communications between Tucker and Gradient regarding such articles. Tucker withheld certain documents on the basis of attorney-client and the attorney work-product privileges but produced the e-mails authored by Nelson, who had left the firm. Nelson, subpoenaed for a deposition, claimed the e-mails contained his privileged attorney work-product and demanded they be sequestered and returned to him.Nelson filed suit, claiming that as a result of Tucker’s production of his e-mails, his work-product was available on the Internet and disseminated to asbestos plaintiffs’ attorneys, interfering with his ability to work effectively and resulting in his termination from his new firm. After Tucker’s unsuccessful attempt to compel arbitration and unsuccessful anti-SLAPP motion, the trial court ruled in favor of Nelson. The court of appeal reversed, concluding that Tucker, not Nelson, was the holder of the attorney work-product privilege with respect to the emails. On remand, the trial court granted Tucker judgment. The court of appeal affirmed. Each of Nelson’s claims was barred by the law of the case or by the litigation privilege, Civil Code 47(b). View "Nelson v. Tucker Ellis, LLP" on Justia Law

William Persichette, through Franklin D. Azar & Associates, P.C., brought an underinsured-motorist (“UIM”) action against Owners Insurance Company (“Owners”) for allegedly handling his insurance claim unreasonably and in bad faith. About three months later, Persichette retained Mark Levy of Levy Law, P.C. (collectively “Levy Law”) as co-counsel. Owners promptly moved to disqualify Levy Law pursuant to Colo. RPC Rule 1.9(a) on the ground that Levy Law was Owners’ longtime former counsel and had a conflict of interest. The district court denied the motion, finding that Levy Law’s representation of Persichette was not “substantially related” to Levy Law’s decade-plus representation of Owners. Owners then filed a C.A.R. 21 petition invoking the Colorado Supreme Court's original jurisdiction. The Supreme Court concluded the district court erred in denying Owners’ motion to disqualify, and reversed. View "Persichette v. Owners Ins. Co." on Justia Law

The IRS served a John Doe summons on the Texas Law Firm, which provides tax-planning advice, seeking documents for “U.S. taxpayers," who, during specified years, used the Firm's services "to acquire, establish, maintain, operate, or control" a foreign financial account, asset, or entity or any foreign or domestic financial account or assets in the name of such foreign entity. A John Doe summons, described in 26 U.S.C. 7609(c)(1), does not identify the person with respect to whose liability the summons is issued. The government made the required showings that the summons relates to the investigation of a particular person or ascertainable group or class, there is a reasonable basis for believing that such person or group or class may fail or may have failed to comply with any provision of internal revenue law, and the information sought and the identity of the person or persons is not readily available from other sources. The Firm moved to quash, claiming that, despite the general rule a lawyer’s clients’ identities are not covered by the attorney-client privilege, an exception exists where disclosure would result in the disclosure of confidential communication.The Fifth Circuit affirmed in favor of the government. Blanket assertions of privilege are disfavored. The Firm's clients’ identities are not connected inextricably with privileged communication. If the Firm wishes to assert privilege as to any responsive documents, it may do so, using a privilege log to detail the foundation for each claim. View "Taylor Lohmeyer Law Firm. P.L.L.C. v. United States" on Justia Law

Kaleb Basey, who was convicted of federal crimes, filed a federal civil rights lawsuit in January 2016 against several Alaska state troopers based on their actions during his investigation and arrest. In September, Basey submitted two public records requests to the Alaska State Troopers seeking various documents relating to the investigation of his case, including two troopers' disciplinary records. Basey's requests were promptly denied on the ground that the information pertained to pending litigation. Asking for reconsideration, Basey's request was again denied, again citing the pending litigation. Acting pro se, Basey appealed, and his appeal reached the Alaska Supreme Court. In 2017, the Supreme Court reversed a superior court's dismissal order, holding that neither disclosure exception the State used as grounds for resisting Basey's request had applied. Basey moved to compel production of the requested records in January 2018. The State responded by agreeing to produce certain records, denying the existence of others, and asserting that the requested disciplinary records were private personnel records exempt from disclosure. In a seonc trip to the Alaska Supreme Court, the issue before the Court was whether state employee disciplinary records were confidential “personnel records” under the State Personnel Act and therefore not subject to disclosure under the Alaska Public Records Act. To this, the Court concluded that, with one express statutory exception not relevant to this case, the answer was “yes.” View "Basey v. Alaska Dept. of Pub.Safety" on Justia Law

Sharon Walsh retained Swapp Law, PLLC, d/b/a Craig Swapp & Associates ("CS&A") after she was involved in two car accidents in 2013. In the negligence action stemming from the first accident, Walsh followed firm employee Stephen Redd’s advice and settled the case. Walsh then changed representation and, with her new counsel, settled the second case. On March 2, 2017, Walsh filed this action alleging, among other things, that CS&A was negligent in advising her to settle the first case while the second case was still pending and by failing to advise her of an underlying subrogation responsibility in the first case. CS&A moved for summary judgment. It argued that Walsh’s claim was time-barred under Idaho Code section 5-219(4)’s two-year statute of limitations because her malpractice claim began to accrue when she released the first claim. The district court agreed and granted the motion. Walsh timely appeals. Based on its review of the record, the Idaho Supreme Court determined the district court did not err in awarding summary judgment to CS&A. The district court properly determined that Walsh’s claim was time barred under Idaho Code section 5-219 because her cause of action accrued when she signed the release of claims for the First Collision case more than two years prior to her filing the action at hand. Further, the district court properly determined that the fraudulent-concealment provision of Idaho Code section 5-219(4) did not apply because Walsh was put on inquiry of CS&A’s alleged malpractice in June 2015, more than one year prior to filing this action. The district court’s decision granting CS&A’s motion for summary judgment and its final judgment were thus affirmed. View "Walsh v. Swapp Law" on Justia Law

This case arose from the representation of plaintiff Antonio Nieves by a state public defender, Peter Adolf, Esq. After his conviction, Nieves was granted post-conviction relief based on the ineffective assistance of counsel at trial. DNA evidence later confirmed that Nieves was not the perpetrator, and the underlying indictment against him was dismissed. Nieves subsequently recovered damages from the State for the time he spent wrongfully imprisoned. He then filed the present legal malpractice action seeking damages against the Office of the Public Defender (OPD) and Adolf. Defendants moved for summary judgment, arguing that the New Jersey Tort Claims Act (TCA) barred the damages sought because Nieves failed to vault N.J.S.A. 59:9-2(d)’s verbal threshold. The motion court concluded that the TCA and its verbal threshold were inapplicable. The Appellate Division reversed, concluding that “public defenders are public employees that come within the TCA’s immunities and defenses” and that Nieves’s claim fell squarely within the TCA. The Appellate Division also held that plaintiff’s claim for loss of liberty damages fell within the TCA’s limitation on recovery for pain and suffering in N.J.S.A. 59:9-2(d), which Nieves failed to satisfy. The New Jersey Supreme Court concluded the TCA applied to Nieves’s legal malpractice action, and his claim for loss of liberty damages failed to vault the verbal threshold for a pain and suffering damages claim under the strictures of N.J.S.A. 59:9-2(d). Defendants were entitled to summary judgment. View "Nieves v. Office of the Public Defender" on Justia Law