Articles Posted in Legal Ethics

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Sarah Jackson and David Thomas retained Persels & Associates, LLC (Persels) to defend them in debt collection cases. Persels retained Kentucky attorneys K. David Bradley and Robert Gillispie to provide limited representation. The limited representation agreements provided that neither lawyer was required to sign pleadings, enter an appearance, or attend court proceedings. The circuit court subsequently ordered the attorneys to show cause why they should not be held in contempt for their failure to enter their appearances and sign documents filed with the court. Persels intervened as a third party. The trial court determined that Parsels and the two attorneys had violated Ky. R. Civ. P. 11 and fined each $1. The court of appeals affirmed. The Supreme Court reversed, holding that limited-representation counsel is not required to sign the documents prepared as part of the limited representation, and therefore Rule 11 does not apply. Remanded to the trial court to determine whether the limited-representation agreements at issue were reasonable. View "Persels & Assocs., LLC v. Capital One Bank" on Justia Law

Posted in: Legal Ethics

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At issue in this certification request was the correct interpretation of Kentucky Code of Judicial Conduct Canons 5A(1)(a), 5A(1)(b), and 5B(1)(c), which were promulgated by the Supreme Court with the objective of complying with Section 117 of the Kentucky Constitution requiring that all justices of the Supreme Court and judges of the court of appeals, circuit and district court shall be elected from their respective districts or circuits on a nonpartisan basis. In response to questions of the United States District Court for the Eastern District of Kentucky, the Supreme Court answered (1) under Canon 5A(1)(a), judicial candidates may affiliate themselves as members of a political party without restriction but may not portray themselves as the official nominee of a political party; (2) as applied to this case, hosting events for a political party would violate Canon 5A(1)(b); and (3) Canon 5B(1)(c) prohibits a judge who holds her office by way of a gubernatorial appointment from asserting that she seeks to be re-elected. View "Winter v. Hon. Stephen D. Wolnitzek" on Justia Law

Posted in: Legal Ethics

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Paul R. Plante, Jr. brought a shareholder derivative suit against Appellants, directors of Arthrodynamic Technologies Animal Health Division, Inc. (ADT), alleging that Appellants had violated various provisions of ADT’s shareholder agreement with respect to sales of stock. The law firm Miller, Griffin & Marks, PSC (MGM) was retained to represent Appellants. Plante moved to disqualify MGM as the counsel for Appellants, alleging that MGM’s participation in the action created a conflict of interest or at least an appearance of impropriety due to MGM’s representation of two Appellants in another suit and its representation of the board of directors, which included Plante, in giving advice on other litigation. The trial court concluded that disqualification of MGM was required based on the appearance of impropriety. Appellants subsequently sought a writ of prohibition to bar enforcement of the trial court’s order. The Court of Appeals denied the writ because Appellants had not shown irreparable injury. The Supreme Court reversed, holding (1) the trial court applied a disqualification standard that is no longer appropriate under the Rules of Professional Conduct; and (2) the trial court’s factual findings were insufficient to allow disqualification under the proper standard of a showing of actual conflict. View "Marcum v. Hon. Ernesto Scorsone" on Justia Law

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This case arose after the settlement of Guard v. American Home Products, Inc., which was brought by Kentucky residents who had taken the diet drug known as Fen-Phen. Each Appellant was a plaintiff in the Guard case and was represented under a contingent fee contract by Appellees, a team of four attorneys. Appellants filed a complaint alleging that Appellees breached their fiduciary duties by wrongfully retaining or improperly disbursing a portion of the Guard case settlement money that should have gone to Appellants. The trial court granted partial summary judgment to Appellants, finding three of the attorneys breached their fiduciary duty. The court of appeals reversed and remanded the case against the three attorneys for further proceedings. The Supreme Court reversed the court of appeals' opinion regarding the issue of the three attorneys' breach of fiduciary duty and reinstated the partial summary judgment entered against them, holding, primarily, (1) the facts established a breach of fiduciary duty that entitled Appellants to summary judgment on the three attorneys' liability as a matter of law; and (2) the court of appeals did not err by declining to review the trial court's denial of summary judgment against the fourth attorney, as the order was not appealable. View "Abbott v. Chelsea " on Justia Law

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Appellant, the representative of a decedent's estate, hired attorneys David Mushlin and William Nefzger and their law firm to pursue a medical negligence claim against a hospital and several physicians. The trial court later disqualified Mushlin on the ground that Mushlin's prior representation of the hospital was sufficient to create a conflict of interest or at least the appearance of impropriety. The court also noted that Nefzger and the entire firm were conflicted because Mushlin could not effectively be screened from the case and there was a great likelihood of his having constant contact with the other attorneys who would be working on the case in his stead. Appellant subsequently filed a petition for a writ of prohibition, which the court of appeals denied. The Supreme Court affirmed, holding that Appellant failed to show she would suffer great injustice and irreparable injury from the trial court's order disqualifying her lawyer and his law firm from representing her. View "Robertson v. Circuit Court" on Justia Law

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Appellant, a licensed attorney, was found in criminal contempt by the circuit court for failing to appear at a client's arraignment. The court of appeals affirmed. Appellant argued on review (1) he was under no duty to appear at the arraignment because he had withdrawn from representing the client, and (2) even if he had a to duty to appear there were insufficient grounds upon which to find him in criminal contempt. The Supreme Court affirmed, holding (1) Appellant had a duty to appear at his client's arraignment; and (2) the trial court did not abuse its discretion in finding Appellant's failure to appear at the arraignment to be criminally contemptuous. View "Poindexter v. Commonwealth" on Justia Law

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Russell Alred, judge of the judicial court, became the focus of a lengthy investigation by the judicial conduct commission culminating in formal charges consisting of twenty allegations of misconduct in office. Following an adversarial hearing on these charges, the commission found official misconduct on nine of the charges and ordered the judge removed from office. The Supreme Court (1) reversed the commission's findings and legal conclusions as clearly erroneous as to Count V, which charged Judge Alred with changing a defendant's bond conditions without a hearing or giving notice to the defendant, because it was not supported by sufficient evidence; and (2) affirmed the commission's order as to eight counts of official misconduct and the commission's decision to remove Judge Alred from office. View "Alred v. Commonwealth " on Justia Law

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Appellants, attorney Barbara Bonar and her law firm, claimed entitlement to a portion of the attorney's fees awarded in a class action settlement. Bonar and Appellees, a law firm and attorneys, initiated the class action as co-counsel. Before the settlement was negotiated, Bonar withdrew. Bonar claimed she was forced to withdraw. Following a bench trial, the circuit court concluded Bonar was not entitled to any of the attorney's fees because her withdrawal was voluntary. The court of appeals affirmed. The Supreme Court affirmed, holding (1) the weight of the evidence supported the conclusion that Bonar withdrew from the case voluntarily, and therefore, Bonar was not entitled to any portion of the attorney's fees awarded to class counsel; (2) the trial court did not improperly limit discovery; and (3) the trial court did not violate Bonar's right to a fair trial by commenting on Bonar's conduct. View "B. Dahlenburg Bonar, P.S.C. v. Waite, Schneier, Bayless & Chesley Co., LPA" on Justia Law

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Russell D. Alred, judge of the 26th judicial circuit of Kentucky, became the focus of a lengthy investigation by the judicial conduct commission, culminating in formal charges consisting of twenty allegations of misconduct in office. Following an adversarial hearing on these charges, the commission found official misconduct on nine of the charges and ordered Judge Alred removed from office. The Supreme Court (1) affirmed the order of the commission as to eight counts of official misconduct and the commission's decision to remove Judge Alred from office, holding that there was good cause to remove Judge Alred from his judicial office for misconduct; but (2) reversed the commission's findings and legal conclusions as to Count V, holding that the commission's findings regarding Count V were not supported by sufficient evidence. View "Alred v. Commonwealth" on Justia Law

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The Jefferson County District Court Judges and Trial Commissioners petitioned the Supreme Court to review Judicial Ethics Opinion JE-212, in which the Ethics Committee of the Kentucky Judiciary determined that a judge's staff attorney or law clerk could not be appointed to the additional position of trial commissioner even if the time spent in each position would be separately accounted for, or if the staff attorney/law clerk did not work on anything she had worked on as a trial commissioner, and vice versa. The Supreme Court vacated the Opinion, holding (1) in this case there was no violation of the trial commissioner's ethical requirement to give first place to his judicial duties because the position of a trial commissioner is part-time; and (2) although there is a potential appearance of impropriety where a district court trial commissioner also serves as a staff attorney for a court of the same judicial district, the limited situations in which this may arise does not justify the blanket exclusion of all judicial staff attorneys from serving as trial commissioners. View "Dist. Court Judges & Trial Comm'rs v. Ethics Comm." on Justia Law