Articles Posted in Professional Malpractice & Ethics

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Patel saved $560,000, enough to purchase a 7-Eleven franchise. He kept the money with Portfolio; the contract gave Wagha discretion over the funds’ deployment. Wagha invested much of the money in options. By the time Patel needed the funds (four months later), the market was down and he had lost a considerable sum. A jury concluded that Wagha and Portfolio had broken their promise to invest the money conservatively and awarded Patel $136,000 for breach of contract plus $64,000 for securities fraud. The district court remitted the $64,000 award, ruling that Patel has not shown loss causation, but entered judgment on the $136,000 award. The Seventh Circuit affirmed, holding that the district court retained jurisdiction after it resolved the federal law claim. In addition, the federal-law claim should not have been dismissed. The premise of that holding—that the securities laws are concerned only with inaccurate pricing—was incorrect. Securities laws forbid fraud in all aspects of securities transactions, whether or not the fraud affects the instruments’ prices. One kind of fraud is procuring securities known to be unsuitable to a client’s investment goals, after promising to further those goals. View "Patel v. Portfolio Diversification Group, Inc." on Justia Law

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The U.S. Trustee alleged that Husain’s bankruptcy filings regularly failed to include debtors’ genuine signatures. Bankruptcy Judge Cox of the Northern District of Illinois made extensive findings, disbarred Husain, and ordered him to refund fees to 18 clients. When he did not do so, Judge Cox held him in contempt of court. The court’s Executive Committee affirmed the disbarment and dismissed the appeal from the order holding Husain in contempt but did not transfer the contempt appeal to a single judge, although 28 U.S.C. 158(a) entitles Husain to review by at least one district judge. The Seventh Circuit affirmed the disbarment and remanded the contempt appeal for decision by a single judge. The court noted extensive evidence that Husain submitted false signatures, documents that could not have been honest, and petitions on behalf of ineligible debtors; he omitted assets and lied on the stand during the hearing. The court noted that Husain’s appeal was handled under seal and stated that: There is no secrecy to maintain, no reason to depart from the strong norm that judicial proceedings are open to public view. View "In re: Husain" on Justia Law

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Seventh Circuit Rules 3(c)(1) and 28(a) require the same jurisdictional information for docketing and briefing. With an exception for pro se submissions, the court screens all filed briefs to ensure that they include all required information about the jurisdiction of both the district court (or agency) and the court of appeals. FRAP 28(b) allows the appellee to omit the jurisdictional statement “unless the appellee is dissatisfied with the appellant’s statement.” In consolidated appeals, the Seventh Circuit found the jurisdictional statements inadequate and stated that the appellee cannot simply assume that the appellant has provided a jurisdictional statement that complies with the rules. The appellee must review the appellant’s jurisdictional statement to see if it is both complete and correct. If the appellant’s statement is not complete, or not correct, the appellee must file a “complete jurisdictional summary.” It is not enough simply to correct the misstatement or omission and “accept” the balance of the appellant’s statement. In one case, the Attorney General stated: “Mr. Baez‐Sanchez’s jurisdictional statement is correct,” saying nothing about completeness, so the brief must be returned to the Department of Justice. The other jurisdictional statement states “Appellants’ jurisdictional statement provides a complete jurisdictional summary.” The court stated: Fine, but what about correctness? View "Bishop v. Air Line Pilots Association, International" on Justia Law

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Hunt worked as a truck driver. In 2010, he signed an Independent Contractor Operating Agreement with Moore Brothers, a small Norfolk, Nebraska company. Three years later, Hunt and Moore renewed the Agreement. Before the second term expired, however, relations between the parties soured. Hunt hired Attorney Rine. Rine filed suit in federal court, although the Agreements contained arbitration clauses. Rine resisted arbitration, arguing that the clause was unenforceable as a matter of Nebraska law. Tired of what it regarded as a flood of frivolous arguments and motions, the district court granted Moore’s motion for sanctions under 28 U.S.C. 1927 and ordered Rine to pay Moore about $7,500. The court later dismissed the action without prejudice. The Seventh Circuit affirmed. It was within the district court’s broad discretion, in light of all the circumstances, to impose a calibrated sanction on Rine for her conduct of the litigation, culminating in the objectively baseless motion she filed in opposition to arbitration. View "James Hunt v. Moore Brothers, Inc." on Justia Law

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General Motors (GM), represented by the Mayer Brown law firm, entered into secured transactions in which JP Morgan acted as agent for two different groups of lenders. The first loan (structured as a secured lease) was made in 2001 and the second in 2006. In 2008, the 2001 secured lease was paid off, which required the lenders to release their security interests in the collateral securing the transaction. The closing papers for that payoff accidentally also terminated the lenders’ security interests in the collateral securing the 2006 loan. No one noticed—not Mayer Brown and not JP Morgan’s counsel. When GM filed for bankruptcy protection in 2009, GM and JP Morgan noticed the error. Plaintiffs, members of the consortium of lenders on the 2006 loan, were not informed until years later. Plaintiffs sued GM’s law firm, Mayer Brown. The Seventh Circuit affirmed dismissal, holding that Mayer Brown did not owe plaintiffs a duty. The court rejected arguments that JP Morgan was a client of Mayer Brown in unrelated matters and thus not a third‐party non‐client; even if JP Morgan was a third‐party non‐client, Mayer Brown assumed a duty to JP Morgan by drafting the closing documents; and the primary purpose of the GM‐Mayer Brown relationship was to influence JP Morgan. View "Oakland Police & Fire Retirement System v. Mayer Brown, LLP" on Justia Law

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Leonard was appointed to defend Ogoke, who was charged with wire fraud. Ogoke’s codefendant, Okusanya entered into a cooperation plea agreement. Based on the government's motion in limine, Judge Guzmán entered an order that “unless there is a showing that the missing witness is peculiarly within the government’s control, either physically or in a pragmatic sense, Defendant is precluded from commenting on the government’s failure to call any witness.” It was the government’s theory that Ogoke and Okusanya were coconspirators in the fraud. Okusanya appeared on the government’s witness list, but the government did not call him during trial. During his closing argument, Leonard made several references to Okusanya’s failure to testify. Judge Guzmán sustained an objection and struck that portion of the argument. Before the jury returned a verdict, Judge Guzmán issued an order to show cause as to why Leonard should not be held in contempt. The jury found Ogoke not guilty. The government declined to participate in the contempt proceeding, Leonard was represented by counsel, but no prosecutor was appointed. Leonard stated that he had not realized he violated the ruling, but later acknowledged his “huge mistake.” Judge Guzmán issued an order holding Leonard in contempt, 18 U.S.C. 401, and ordering him to pay a fine, finding Leonard’s explanation “incredible” given his extensive experience as a defense attorney. The Seventh Circuit affirmed the conviction as supported by sufficient evidence, rejecting procedural and due process arguments. View "United States v. Ogoke" on Justia Law

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In 2008, West Bend filed a legal malpractice action based on the performance of attorney Schumacher and his firm, RLGZ, in a 2005-2006 workers’ compensation matter. The parties agreed to a dismissal of that claim and entered into a tolling agreement pending the resolution of related actions. After the resolution of those claims, West Bend filed a malpractice suit against Schumacher in 2013. The district court dismissed the first and an amended complaint, concluding that the allegations were too speculative or vague. The court stated that allegations about failure to depose a doctor, failure to contact witnesses prior to the hearing, the disclosure of certain facts to opposing counsel, and that Schumacher had represented that West Bend would accept liability, did not explain “how any of these alleged acts and omissions harmed its defense.” The Seventh Circuit affirmed. The complaint did not adequately plead a claim for legal malpractice under Illinois law; it fails to allege plausibly that the outcome of the underlying action would have been more favorable to West Bend, had it not been for Schumacher’s alleged litigation conduct View "West Bend Mutual Insurance Co v. Schumacher" on Justia Law

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When Chelsea was five months old, she was dropped and suffered a skull fracture. As the fracture expanded, a cyst formed. The fracture and cyst were not a problem until, at age 17, she was hit in the head and suffered a loss of consciousness, blurred vision, and dizziness. After CT and MRI scans confirmed the extent of the fracture and the cyst, Chelsea underwent “cranioplasty” surgery. She was discharged after one day and was found dead in her bed three days later. A board‐certified forensic pathologist was unable to identify a cause of death and, based on the opinion of a neuropathologist, concluded that Chelsea had died from a seizure brought about by surgical damage. Neither doctor was aware of or had reviewed the pre‐surgery CT and MRI scans when they made their findings. Chelsea’s mother sued the hospital and doctors, arguing that anti-seizure medicine should have been prescribed. The defendants argued that no seizure had occurred and that a heart‐related ailment was the likely cause of death. A jury found in the defendants’ favor. The Seventh Circuit vacated, finding that one defense expert lacked the requisite qualifications to opine that a heart ailment was the likely cause of death and that there was a significant chance that the erroneous admission of the testimony affected the trial’s outcome. View "Hall v. Flannery" on Justia Law

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The Joyce law firm purchased professional liability insurance from Professionals Direct. In 2007 the firm won a large damages award for a class of securities-fraud plaintiffs and hired another law firm to sue to collect the money from the defendant’s insurers. Some class members thought the Joyce firm should have handled enforcement of the judgment itself under the terms of its contingency-fee agreement. They took the firm to arbitration over the extra fees incurred. Professionals Direct paid for the firm’s defense in the arbitration. After the arbitrator found for the clients and ordered the firm to reimburse some of the fees they had paid, the insurer refused a demand for indemnification. The district judge sided with the insurer, concluding that the award was a “sanction” under the policy’s exclusion for “fines, sanctions, penalties, punitive damages or any damages resulting from the multiplication of compensatory damages.” The Seventh Circuit affirmed. While the arbitration award was not functionally a sanction, another provision in the policy excludes “claim[s] for legal fees, costs or disbursements paid or owed to you.” Because the arbitration award adjusted the attorney’s fees owed to the firm in the underlying securities-fraud class action, the “legal fees” exclusion applies. View "Edward T. Joyce & Assocs. v. Prof'ls Direct Ins. Co." on Justia Law

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Illinois attorney Jahrling was contacted and paid by attorney Rywak to prepare documents for the sale of 90-year-old Cora’s home. Rywak’s clients paid $35,000 for Cora’s property, which was worth at least $106,000 and was later resold by the purchasers for $145,000. Cora later alleged he understood that he would keep a life estate to live in the upstairs apartment of the home rent-free. Jahrling’s sale documents did not include that life estate. Jahrling and Cora could not communicate directly and privately because Cora spoke only Polish and Jahrling spoke no Polish. Jahrling relied on counsel for the adverse parties for all communication with Cora. After the buyers tried to evict Cora, Cora sued Jahrling in state court for legal malpractice. After a partial settlement with a third party and offsets, the court awarded Cora’s estate $26,000, plus costs. Jahrling filed for Chapter 7 bankruptcy protection. Cora’s estate filed an adversary proceeding alleging that the judgment was not dischargeable under 11 U.S.C. 523(a)(4) because the debt was the result of defalcation by the debtor acting as a fiduciary. The bankruptcy court found in favor of the estate. The Seventh Circuit affirmed.Jahrling’s egregious breaches of his fiduciary duty were reckless and the resulting malpractice judgment is not dischargeable. View "Jahrling v. Estate of Cora" on Justia Law