Articles Posted in Legal Ethics

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Attorney Boland was an expert witness and defense counsel in child pornography cases. To demonstrate that pornographic images may be altered to appear that minors were engaged in sexual conduct when they were not, Boland purchased innocent stock images of minors and "morphed" them into pornographic images for use in criminal proceedings. The issue of whether Boland committed a crime in creating and displaying these images of child pornography was raised and Boland eventually voluntarily entered into a Pretrial Diversion Agreement, explaining and apologizing for creating the images. Two of the minors, depicted in the images Boland created, won awards under 18 U.S.C. 2252A(f), which provides civil damages for victims of child pornography. Boland filed a Chapter 7 bankruptcy petition; the minors filed an unsuccessful adversary proceeding, asserting their awards were non-dischargeable debts for willful and malicious injury under 11 U.S.C. 523(a)(6). The Sixth Circuit Bankruptcy Appellate Panel remanded. Collateral estoppel did not apply on the issue of whether Boland intended to injure the minors since intent was not actually litigated or necessary to the outcome of the prior litigation, but stipulations made through Boland's Diversion Agreement and judicial decisions concerning his liability to the minors established that Boland knowingly created and possessed pornographic images involving images of real children. The bankruptcy court did not consider the legal injury suffered by the minors as a result of the invasion of their privacy and reputational interests. Boland acted without justification, maliciously injuring the minors under 11 U.S.C. 523(a)(6). View "In re Boland" on Justia Law

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Plaintiffs brought medical malpractice claims in Ohio state court against a doctor who operated on them and against several hospitals where he worked. The plaintiffs allege that the judge presiding over their case, Judge Schweikert, and Chief Justice O’Connor of the Ohio Supreme Court were biased against their claims. In accordance with Ohio law, they filed affidavits of disqualification against Judge Schweikert, and requested that Chief Justice O’Connor recuse herself from deciding Judge Schweikert’s disqualification. They then requested that a federal court enjoin Chief Justice O’Connor from ruling on the affidavit of disqualification pertaining to Judge Schweikert and enjoin Judge Schweikert from taking any action in their cases before the affidavit of disqualification was ruled upon. The Sixth Circuit affirmed the dismissal of the claims. The Younger abstention doctrine applies. The ability of Ohio courts to determine when recusal of a judge or justice is appropriate and to administer the recusal decision process in accordance with state law operates “uniquely in furtherance of the state courts’ ability to perform their judicial functions.” View "Aaron v. O'Connor" on Justia Law

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Olagues is a self-proclaimed stock options expert, traveling the country to file pro se claims under section 16(b) of the Securities and Exchange Act of 1934, which permits a shareholder to bring an insider trading action to disgorge “short-swing” profits that an insider obtained improperly. Any recovery goes only to the company. In one such suit, the district court granted a motion to strike Olagues’ complaint and dismiss the action, stating Olagues, as a pro se litigant, could not pursue a section 16(b) claim on behalf of TimkenSteel because he would be representing the interests of the company. The Sixth Circuit affirmed that Olagues cannot proceed pro se but remanded to give Olagues the opportunity to retain counsel and file an amended complaint with counsel. View "Olagues v. Timken" on Justia Law

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After Hickory fired Carter from her job as a nursing assistant in 2007, Carter filed an unlawful discrimination claim with the Ohio Civil Rights Commission. That agency filed a parallel charge with the federal Equal Employment Opportunity Commission, under the Americans with Disabilities Act. For six years, the complaint inched its way through the state system. In November 2013, the Ohio Commission ordered Hickory to reinstate Carter and to pay her lost wages. Carter asked the EEOC for a right-to-sue letter. Because Carter had moved without notifying that agency, it mailed the letter to her old address. Over the next few months, Carter’s attorney, Gilbert, contacted the agency, and in November 2014 procured a copy of the letter dated February 2014. Carter filed suit in December 2014. The court concluded that Carter’s claim was time-barred because she filed it more than 90 days after the date on her right-to-sue letter and imposed a $25,995.32 sanction on attorney Gilbert for advancing a clearly time-barred claim. The Sixth Circuit affirmed. It is irrelevant that Hickory did not move for dismissal but waited until summary judgment to raise the statute of limitations; it instead contacted Gilbert and informed him of the flaws in his case. The court awarded fees and costs incurred only after that time. View "Carter v. Hickory Healthcare Inc." on Justia Law

Posted in: Legal Ethics

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Ayers, an experienced Kentucky criminal-defense attorney, was indicted in 2008 on five counts of failing to file state tax returns. Ayers represented himself throughout the 21 months between his indictment and trial, but never formally elected to do so. He never waived his right to counsel on the record, filed a notice of appearance, or moved to be allowed to proceed pro se. The court allegedly failed to inform him at his arraignment that he had a right to counsel and never subsequently sought to determine whether Ayers’s self-representation was a voluntary, intelligent, and knowing waiver of his right to counsel. When Ayers asked for a continuance a day before trial was scheduled to begin so that he could hire an attorney with whom he attested he was already in negotiations, the court denied his request and forced him to proceed pro se. Ayers was convicted. The Sixth Circuit reversed the district court’s denial of habeas relief. The Kentucky Supreme Court acted contrary to clearly established Supreme Court precedent when it held that trial courts need not “obtain a waiver of counsel” before allowing “experienced criminal trial attorneys” to represent themselves. Applying de novo review, the court concluded that Ayers did not validly waive his right to counsel. View "Ayers v. Hall" on Justia Law

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In November 2010, Hayes engaged Cybriwsky to represent him related to the denial of Hayes’s application for Social Security disability benefits. In February 2011, the case was remanded for further administrative hearings (42 U.S.C. 405(g)) because faulty recordings of the hearings rendered the record inaudible. On remand, the Administrative Law Judge entered a fully favorable decision for Hayes in August 2011. The district court affirmed in April 2012. The next month Cybriwsky sought attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. 2414. The court granted attorney’s fees of $2,225 in August 2012. In April 2017, Cybriwsky moved, under 42 U.S.C. 406(b), seeking more than $11,000. in fees. He subsequently provided documentation of the fee arrangement, benefits paid to Hayes, and an itemized description of the work performed. By the time Cybriwsky filed his 2017 motion, the SSA had released the 25% of past-due benefits normally reserved to pay attorney’s fees; $5,300 was awarded to Hayes’s attorney at the administrative level and the remainder was released to Hayes. Any fees awarded to Cybriwsky would have to be recovered from Hayes, either directly or by having fees taken from Hayes’s monthly disability payments. The Sixth Circuit affirmed denial of the motion as untimely and determined that the circumstances did not merit the exercise of equitable tolling. View "Hayes v. Commissioner of Social Security" on Justia Law

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In Ohio, judges in all courts of record are selected by election. Ohio Code of Judicial Conduct, Canon 4, governs the fundraising and political conduct of judicial candidates. Platt, an Ohio attorney, formed the Platt for Judge Campaign Committee in 2013. Platt believes that parts of Canon 4 violate his rights to free speech, due process, and equal protection: Rule 4.1(A)(2), which prohibits a candidate from making speeches on behalf of a political party or another candidate for office; Rule 4.1(A)(3), which prohibits a candidate from publicly endorsing or opposing a candidate for another public office; Rule 4.4(A), which, save for three exceptions, prohibits a judicial candidate from personally soliciting campaign contributions; Rule 4.4(E), which creates a permissible window for soliciting and receiving campaign contributions; Rule 4.4(F), which limits the solicitation and receipt of contributions for candidates defeated before the general election; and Rule 4.4(G), which regulates the solicitation and receipt of contributions for candidates who die or withdraw from the election. The Sixth Circuit affirmed the district court’s rejection of all of Platt’s claims. Ohio’s rules strike the delicate balance between the Constitution’s commands and the state’s desire to protect judicial integrity. View "Platt v. Board of Commissioners on Grievances & Discipline of the Ohio Supreme Court" on Justia Law

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Cathedral Buffet, an Ohio for-profit corporation, does not generate a profit. Its sole shareholder is Grace Cathedral, a 501(c)(3) non-profit religious organization, which subsidizes the restaurant. The restaurant separated its workers into “employees” and “volunteers.” Volunteers performed many of the same tasks as employees, who received an hourly wage. Reverend Angley recruited volunteers from the pulpit on Sundays, suggesting that members who repeatedly refused to volunteer were at risk an unforgivable sin. The Department of Labor (DOL) filed suit; the district court held that Buffet’s religious affiliation did not exempt it from Fair Labor Standards Act. The Sixth Circuit reversed. To be considered an employee under the FLSA, a worker must first expect to receive compensation; Buffet volunteers had no such expectation. Buffet then sought “prevailing party” costs and attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412, arguing that the DOL’s position throughout the litigation was not substantially justified. The Sixth Circuit declined to address the issue: “in the usual case in which fees are sought for the entire litigation, the determination of whether the government was ‘substantially justified’ . . . is for the district court” because that court “may have insights not conveyed by the record.” Buffet did not wish to argue before the district court, which adopted the DOL’s position, but that is not a legitimate reason to forgo judicial economy. The district court is better-equipped to determine the fees, if any, that should be awarded for work at that level. View "Acosta v. Cathedral Buffet, Inc." on Justia Law

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Three-and-a-half years ago, a Kentucky state court issued a judgment in plaintiffs’ favor against class-action plaintiffs’ attorney Chesley for $42 million. Since then, the plaintiffs have been trying to collect on that judgment. Chesley has successfully evaded them with the help of his confidantes. In the process, five lawyers have been disbarred; two have been put in jail. Chesley has managed to transfer most of his assets elsewhere, rendering himself judgment-proof and forcing the plaintiffs to file the fraudulent conveyance action underlying this appeal. While that fraudulent conveyance action was pending, Chesley initiated an Ohio state probate court action. He claims the action was started for legitimate purposes—to pay off his law firm’s creditors in a judicially-supervised forum. The district court disagreed. Sensing Chesley was using the probate action to continue to conceal his assets, it issued a preliminary injunction freezing those assets. In the time since the injunction was entered (and this appeal was filed), that probate action was dismissed and declared fraudulent. The Sixth Circuit affirmed the preliminary injunction, which is worded broadly enough to remain effective despite the probate action’s dismissal, and is still adequately supported by the record evidence and is still necessary. View "McGirr v. Rehme" on Justia Law

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The Honorable Michael J. Theile is a Michigan state-court judge. In 2020, the year of the next election for the seat he now holds, Theile will be 71 years of age. Because the Michigan Constitution and a statute prohibit a person who has attained the age of 70 from being elected or appointed to judicial office, Theile will not be eligible to run for re-election, Mich. Const. art. VI, section 19(3); Mich. Comp. Laws 168.411. The Sixth Circuit affirmed the dismissal of his complaint, in which he asserted a violation of the Equal Protection Clause and asked the court to dispense with rational-basis review of age-based classifications and adopt intermediate scrutiny. The court declined to reverse the settled precedent of the Supreme Court and of the Sixth Circuit mandating rational-basis review for age-based classifications and precedent identifying multiple rational bases for judicial age limitations. View "Theile v. State of Michigan" on Justia Law