Articles Posted in Professional Malpractice & Ethics

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IAR believed that defendant, its former CEO, had embezzled money. IAR, represented by Valla, sued defendant. Valla, on behalf of IAR, reported the crimes to the Foster City Police. The district attorney charged defendant with felony embezzlement. In response to defendant’s subpoena, Valla produced over 600 documents and moved to quash other requests on attorney-client privilege grounds. Defendant filed another subpoena, seeking documents relating to an email from the district attorney to Valla, discussing the need for a forensic accountant. Valla sought a protective order. Defendant asserted Valla was part of the prosecution team, subject to the Brady disclosure requirement. Valla and deputy district attorneys testified that Valla did not conduct legal research or investigate solely at the request of the police or district attorney, take action with respect to defendant other than as IAR's attorneys, nor ask for assistance in the civil matter. IAR retained a forensic accountant in the civil action, who also testified in the criminal matter, after being prepared by the district attorney. IAR paid the expert for both. There were other instances of cooperation, including exchanges of legal authority. The court found Valla to be a part of the prosecution team. The court of appeals reversed. The focus is on whether the third party has been acting under the government’s direction and control. Valla engaged in few, if any, activities that would render it part of the prosecution team. View "IAR Systems Software, Inc. v. Superior Court" on Justia Law

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Plaintiff filed suit against its former attorneys for legal malpractice and breach of fiduciary duty arising from defendants' representation of plaintiff in an earlier breach of contract action. In the published portion of this opinion, the court affirmed the trial court's grant of nonsuit on plaintiff's breach of fiduciary claim because plaintiff did not adduce any evidence in support of that claim beyond the evidence offered in support of its malpractice claim for professional negligence. The court affirmed in all other respects. View "Broadway Victoria, LLC v. Norminton, Wiita & Fuster" on Justia Law

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In this original proceeding, the issues presented for the Court of Appeal’s review related to a confidential attorney-client communication. The trial court found that plaintiff and real party in interest Richard Hausman, Sr. (Dick), did not waive the attorney-client privilege by forwarding a confidential e-mail he received from his personal attorney to his sister-in-law because Dick inadvertently and unknowingly forwarded the e-mail from his iPhone, and therefore lacked the necessary intent to waive the privilege. The trial court also impliedly found that Dick’s sister-in-law did not waive the privilege when she forwarded the e-mail to her husband, who then shared it with four other individuals, because neither Dick’s sister-in-law nor his brother-in-law could waive Dick’s attorney-client privilege, and Dick did not consent to these additional disclosures because he did not know about either his initial disclosure or these additional disclosures until a year after they occurred. In a separate order, the trial court disqualified Gibson, Dunn & Crutcher LLP (Gibson Dunn) from representing defendants-petitioners McDermott Will & Emery LLP and Jonathan Lurie (collectively, Defendants) in the underlying lawsuits because Gibson Dunn failed to recognize the potentially privileged nature of the e-mail after receiving a copy from Lurie, and then analyzed and used the e-mail despite Dick’s objection that the e-mail was an inadvertently disclosed privileged document. The Court of Appeal denied the petition in its entirety. Substantial evidence supported the trial court’s orders and the court did not abuse its discretion in selecting disqualification as the appropriate remedy to address Gibson Dunn’s involvement in this matter. “[R]egardless of how the attorney obtained the documents, whenever a reasonably competent attorney would conclude the documents obviously or clearly appear to be privileged and it is reasonably apparent they were inadvertently disclosed, the State Fund rule requires the attorney to review the documents no more than necessary to determine whether they are privileged, notify the privilege holder the attorney has documents that appear to be privileged, and refrain from using the documents until the parties or the court resolves any dispute about their privileged nature. The receiving attorney’s reasonable belief the privilege holder waived the privilege or an exception to the privilege applies does not vitiate the attorney’s State Fund duties.” View "McDermott Will & Emery v. Super. Ct." on Justia Law

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Icke, a chiropractor, was convicted of sexual penetration by fraudulent misrepresentation of professional purpose. (Pen. Code 289(d)(4)). The jury found that Icke digitally penetrated a client for a sexual purpose during a chiropractic massage. The court of appeals affirmed, rejecting Icke’s argument that the trial court erred in rejecting a proposed jury instruction that would have stated he was not guilty of violating section 289(d)(4) if he penetrated the client against her will. The court found the argument foreclosed by the California Supreme Court’s 2016 decision, People v. Robinson, which held the “unconsciousness” requirement of fraudulent misrepresentation of professional purpose crimes is the equivalent of a lack of consent. Icke also argued his conviction was not supported by sufficient evidence because the victim protested and did not actually believe he was acting for professional purposes at the time of the act. The court held that a victim’s misgivings do not exonerate a defendant under section 289(d)(4) if the evidence establishes that the victim allowed a sexual touching to occur because of a representation of professional purpose. View "People v. Icke" on Justia Law

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Plaintiffs filed suit against defendants after he was suspended from his position as a physician at Cedars-Sinai. The suspension stemmed from plaintiff's operation on a young patient, which resulted in complications requiring corrective surgery. The trial court granted the hospital's anti-SLAPP, Code of Civil Procedure 425.16, motion based on its contention that plaintiff's claim arose out of a protected activity—the medical staff's peer review process—and that plaintiff could not show a probability of success on the merits. The court concluded that defendants' acts relating to plaintiff's suspension and peer review process constituted protected activity for purposes of the anti-SLAPP statute and plaintiff's claims arose from that protected activity. Because plaintiffs' claims arose from defendants' protected activity, the burden shifted to plaintiff to submit admissible evidence supporting a prima facie case in his favor. In this case, the court concluded that plaintiff failed to establish a probability of success on the merits of his claims under the Health and Safety Code and he failed to exhaust his administrative remedies. Accordingly, the court affirmed the judgment. View "Melamed v. Cedars-Sinai Medical Center" on Justia Law

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Plaintiffs filed suit after StanCERA implemented several changes to the actuarial calculations used to determine how to amortize unfunded liabilities within the retirement system and chose to utilize so-called non-valuation funds, money not used to ensure the overall system was actuarially sound, to reduce or replace required employer contributions. Plaintiffs argued that these actions constituted a breach of the constitutional fiduciary duties placed on the board of a county retirement system. On appeal, plaintiffs challenged the trial court's grant of summary judgment to defendants. The court concluded that the trial court correctly determined that plaintiffs were not entitled to summary judgment, but the trial court erred in determining that no material issues of fact remained. The court explained that there remain material issues of fact regarding whether the resulting conduct violated the constitutionally mandated fiduciary duty of loyalty the board owed to StanCERA's members. Accordingly, the court reversed and remanded for further proceedings. View "O'Neal v. Stanislaus County Employees' Retirement Association" on Justia Law

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Acting pro se, Clay Jones sued his former attorney, Alan Whisenand, for legal malpractice and civil rights violations allegedly committed in the course of civil commitment proceedings under the Sexually Violent Predator Act (SVPA). The trial court sustained Whisenand’s demurrer to the first amended complaint without leave to amend on the grounds that: (1) Jones failed to allege actual innocence of all charges in the underlying criminal case or post-conviction exoneration; and (2) Jones failed to show that Whisenand was a “state actor” acting “under color of state law.” After review, the Court of Appeal concluded that the actual innocence requirement did not apply to SVPA proceedings. However, public policy considerations underlying the actual innocence requirement (namely, judicial economy and the desire to avoid conflicting resolutions) compelled the conclusion that alleged SVPs should not be able to pursue causes of action for legal malpractice in the course of their SVPA proceedings unless and until such proceedings have been terminated in their favor. "[O]ur conclusion does not leave alleged SVPs without a remedy while proceedings are ongoing, as they may still seek relief for ineffective assistance of counsel in the SVPA proceedings themselves. Jones does not, and cannot, allege that the pending SVPA proceedings have been terminated in his favor. We therefore conclude the trial court properly sustained Whisenand’s demurrer to Jones’s cause of action for legal malpractice." The SVPA proceedings against Jones were still pending, raising the possibility that he might be able to comply with the favorable termination requirement in the future. Accordingly, the Court concluded the demurrer should have been sustained with leave to amend. With respect to his civil rights claim, the Court concluded the trial court properly sustained the demurrer without leave to amend. View "Jones v. Whisenand" on Justia Law

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McNair obtained a commercial driver’s license (CDL) in 2000 and began driving. McNair has a history of diabetes and cognitive deficits. While under the care of Department of Public Health (DPH) physicians, McNair signed forms, stating that his medical records would not be released without his written authorization, absent an articulated exception. One exception applied if the DPH was “permitted or required by law” to release the information. In 2002, Dr. Pope advised “serious caution" in recommending that the CDL be renewed. In 2004. Dr. Kim refused to certify McNair for a CDL. None of the other physicians would agree to certify him. Dr. Kim wrote a letter to support McNair's application for SSI disability benefits, stating her opinion,that he was not able to hold down any type of full-time employment. Later, Alameda County Transit hired McNair as a bus operator. After learning of his job and that McNair had applied for a certificate to drive school busses, Kim contacted the DMV. McNair’s CDL was temporarily revoked. He lost his job. McNair filed suit alleging breach of his medical privacy rights. The court of appeal affirmed summary adjudication, finding his intentional tort and breach of contract claims barred by the litigation privilege, Civil Code 47(b); both claims were based solely on the propriety of Kim‟s letter to the DMV. View "McNair v. City and County of San Francisco" on Justia Law

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Hannon, an attorney, represented Barber in litigation against the victim, Barber’s former domestic partner, Dr. Magno. In December 2006, the parties agreed that Barber would fund a college trust for their children. Barber paid $27,500.32 to Hannon as the trustee of the children’s funds and authorized Hannon to open a bank account. In February 2011, the victim became aware that the children’s funds had been misappropriated. Hannon may have used the money to cover legal fees owed by Barber. Charged with grand theft by embezzlement by a fiduciary (Pen. Code 487(a), 506), Hannon ultimately pled no contest to misdemeanor theft by embezzlement. The trial court placed him on probation for two years, ordered him to perform 240 hours of community service, and ordered him to pay $40,800 in restitution to the victim: $25,000 in attorney’s fees, $15,000 in lost wages, and $800 in mileage. The court of appeal rejected challenges to the restitution award and held that the victim was entitled to file a victim impact statement on appeal, pursuant to the Victims’ Bill of Rights Act of 2008 (Marsy’s Law, Proposition 9 (2008)), but may not raise present legal issues not raised by Hannon or facts not in the record below View "People v. Hannon" on Justia Law

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After his medical license was revoked, petitioner sought a writ of administrative mandamus to set aside the Board's decision. The trial court denied the writ. Petitioner does not dispute the ALJ's findings that he committed numerous acts of dishonesty in 2007 with respect to his employment status and disability insurance benefits. The court concluded that the revocation of petitioner's license to practice medicine was excessive and an abuse of discretion where the revocation was unnecessary to protect the public and contrary to the goal of making him "a better physician." The court's conclusion is supported by the ALJ's statements during the hearing and in his written findings that indicate the discipline was imposed for the improper purpose of punishing petitioner. Accordingly, the court granted the petition. View "Pirouzian v. Super. Ct." on Justia Law