Articles Posted in Legal Ethics

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Petitioner Stevens Law Office appealed a trial court decision denying assignment of a future structured settlement payment from a fund administered by Symetra Assigned Benefits Service Company for legal services rendered by petitioner on behalf of beneficiary Shane Larock. Shane Larock retained petitioner to represent him in a child in need of care or supervision (CHINS) proceeding which he expected to follow the birth of his daughter in early 2016. As payment, petitioner asked Larock for a $16,000 nonrefundable retainer which would be paid through assignment of that sum from a $125,000 structured settlement payment due to Larock in 2022. Under this arrangement, the structured settlement payment issuer, Symetra Assigned Benefits Service Company, would pay petitioner $16,000 directly when the 2022 periodic payment became due under the original terms of the settlement. Larock agreed to the fee arrangement and the assignment. The trial court issued a written order concluding that it could not find that the fee arrangement was reasonable because, given petitioner’s ongoing representation of Larock, such a determination would be speculative. After review, the Vermont Supreme Court reversed and remanded so that the trial court can conduct the best-interest analysis required by statute before determining whether to deny or approve assignment of a structured settlement payment. View "In re Stevens Law Office" on Justia Law

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The Vermont Supreme Court rejected plaintiff’s request to extend an exception to the general rule to the circumstances of this case, which wanted to impose on attorneys a duty to prospective beneficiaries of undrafted, unexecuted wills. Doing so, in the Court’s view, would undermine the duty of loyalty that an attorney owes to his or her client and invite claims premised on speculation regarding the testator’s intent. Plaintiff filed a complaint against both defendant and his law firm alleging that defendant committed legal malpractice and consumer fraud, specifically alleging defendant breached a duty of care by failing to advise mother on matters of her estate and failing to draft a codicil reflecting her intent. The court granted defendants a partial motion to dismiss on the consumer fraud allegation. Plaintiff filed an amended complaint, adding another count of legal malpractice. This amended complaint alleged that defendant breached a duty owed to plaintiff to the extent that he could have successfully challenged mother’s will. According to plaintiff, he filed six affidavits from mother’s relatives, friends, and neighbors indicating that mother was committed to leaving a House she owned to plaintiff. Defendants again moved for summary judgment in which they argued that an attorney did not owe “a duty to a non-client prospective beneficiary of a nonexistent will or other estate planning document.” The trial court ruled there was no duty to beneficiaries of a client’s estate under Vermont law. The Supreme Court agreed. View "Strong v. Fitzpatrick" on Justia Law

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The information filed by the State charged Serendipity Morales with six counts of unauthorized practice of law. Morales was an inmate at the Marble Valley Regional Correctional Center, and it was alleged she engaged in the unauthorized practice of law by helping fellow inmates in their cases, including performing legal research and drafting motions. In this probable cause review, the issue presented for the Supreme Court's consideration was whether there was probable cause to believe that Morales committed the alleged offenses. The Court concluded that there was not and accordingly dismissed the State’s information without prejudice. View "In re Serendipity Morales" on Justia Law

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Plaintiffs Paul Choiniere and P&D Consulting, Inc. sued defendants, attorney Anthony Marshall and his law firm, Harris Beach, PLLC, alleging that they made negligent and intentional misrepresentations while representing a client in a matter involving commercial loan guaranties. Choiniere argued that he relied upon the misrepresentations when deciding not to call a $1 million loan that he made in September 2003, and P&D Consulting argued that it relied upon the misrepresentations when deciding to loan an additional $1.3 million in June 2004. Upon review of the dispute, the Supreme Court reversed the trial court's decision granting defendants summary judgment. In sum, the Court held that there were several material issues in dispute that preclude summary judgment, including the viability of the guaranty agreement after an April 28, 2004 letter, whether plaintiffs' reliance on the April 28 letter was justifiable, whether Marshall was authorized to send the letter, and whether there are any economic damages. View "Choiniere v. Marshall and Beach, PPLC" on Justia Law

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The Judicial Conduct Board concluded that respondent Judge Ernest Balivet violated Canon 3(B)(8) of the Vermont Code of Judicial Conduct. The Supreme Court ordered review on its own motion. The alleged violation stemmed from the judge's handling of a grandfather's petition for guardianship of his granddaughter, and a subsequent request for termination of the parents' parental rights to the child. Before the hearing before the Judicial Conduct Board, the parties identified three disputed issues : (1)whether respondent failed to rule in a timely manner on the motion to revoke guardianship filed by the child’s parents; (2) whether respondent caused unnecessary delay in failing to schedule a hearing on the grandfather’s motion to terminate the father’s parental rights; and (3) whether respondent failed to respond in a timely manner to the order of remand from the family court. The Board’s sanction order recognized respondent’s responsibility for undue delay and endemic court management issues, but also acknowledged that the choices and actions of others played a significant role in the overall duration of the underlying case. It took into account respondent’s forthrightness in his dealings with the Board, his good intentions toward the parties, the reasonableness of his rulings in the underlying case, and his willingness to accept conditions intended to prevent this type of problem from recurring. The Supreme Court saw no reason to set aside the recommended conditions of respondent's sanctions. The Court did conclude, however, that characterization of respondent’s reprimand as “private,” rather than “public,” despite the conceded public character of the reprimand, was confusing and "cannot stand." Accordingly, the Court amended the sanction to characterize it as a “public reprimand.” In all other respects, the Court affirmed the Board’s sanction for respondent’s violation of Canon 3(B)(8). View "In re Balivet" on Justia Law

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Petitioner filed a petition for post-conviction relief (PCR) alleging ineffective assistance of counsel in his underlying criminal case because his lawyers induced him to reject a plea bargain for a much lower sentence "by misrepresenting the potential maximum sentencing exposure petitioner was facing at trial." The superior court appointed a lawyer from the Prisoners’ Rights Office of the Defender General to represent petitioner in that court. The appointed public defender accepted representation and proceeded to represent petitioner throughout the trial court proceeding. The State moved to dismiss the petition under 13 V.S.A. 7134 because it was "a second or successive motion for similar relief on behalf of the same prisoner." The public defender answered that the case did not fit within the statute because the theory on which this petition was based had not been raised in earlier PCR petitions because it was not available at the time of the earlier petitions. The superior court granted summary judgment for the State. Shortly thereafter, the public defender filed a notice of appeal on petitioner’s behalf. In a letter to petitioner, the public defender said she initially thought there were no grounds for appeal, but then said "I changed my opinion and filed a notice of appeal for you." She added, however, that since filing the notice of appeal she discovered the Defender General’s office had a conflict of interest so the case had been assigned to conflict counsel. The first assigned conflict counsel withdrew because her firm had done a merits review for the Defender General on petitioner’s ineffective-assistance-of-counsel claim in connection with a prior PCR action. Counsel concluded that the firm’s prior negative merits review created a conflict of interest. The case was then assigned to attorney Michael Rose. Attorney Rose filed a motion for leave to withdraw, citing Vermont Rule of Professional Conduct 3.1 and case law. Because it became clear during the argument on that motion that the Defender General had not gone through the procedure it typically goes through before seeking leave to withdraw on the basis cited by Attorney Rose, the Supreme Court invited the Defender General to present its position on the motion. Upon further review, the Supreme Court granted Attorney Rose’s motion for leave to withdraw, and it did not appoint new publicly funded counsel. View "In re Bruyette." on Justia Law

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K.F.'s (a juvenile) father appealed the termination of his parental rights. On appeal to the Supreme Court, he argued the trial court erred in denying his motion for new counsel since his previous lawyer had a conflict of interest. As justification, father argued that his trial counsel failed to pursue certain strategies he suggested, and that she would not introduce or object to what he felt was important evidence at trial because she had been a foster parent and was therefore sympathetic to the Department for Children and Families (DCF). The trial court did not find these arguments persuasive and denied father's motion to remove father's trial counsel. Upon review, the Supreme Court concluded that father did not demonstrate that his lawyer rendered ineffective counsel, and accordingly affirmed the trial court's decision. View "In re K.F." on Justia Law

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The issue before the Supreme Court in this case centered on a jury award of emotional distress and economic damages in a legal malpractice action. Defendant challenged the damages award on the grounds that emotional distress damages were not available in a legal malpractice case and that the award of economic damages equal to the amount plaintiff paid to settle the underlying case was improper because plaintiff failed to establish that the underlying settlement was reasonable. Upon review, the Supreme Court reversed as to the award of emotional distress damages and affirmed as to the economic damages award. View "Vincent v. DeVries" on Justia Law

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Plaintiff Celeste Puppolo, executor of the Estate of Eva Puppolo, appealed a jury verdict in favor of Defendant Donovan & O'Connor, LLC stemming from a legal malpractice action. Plaintiff claimed that the trial court erred in denying a motion to withdraw her counsel, that she was denied a fair trial when the court allowed Defendant’s attorney to testify to the merits of the underlying medical malpractice action, and that the trial court improperly admitted expert testimony that exceeded the scope of the defendant’s expert disclosure. Plaintiff's was unpersuaded by the results of investigations into the death of her aunt Eva, and consulted with Defendant about bringing a wrongful death and survivorship claim against the aunt's nursing home and attending physicians. In light of the autopsy report, and the conclusions of the police, Defendant declined to take the case. Defendant told Plaintiff that the limitations period for the survival action began to accrue when she was appointed executor of the estate. Defendant conceded that this statement was incorrect and that the limitations period had actually begun to accrue two months earlier, when the original executor was appointed. Defendant also conceded that it failed to specifically notify Plaintiff of the two year limitations period for the wrongful death action. Plaintiff filed a complaint against the home and physicians through another attorney. Both claims were dismissed on summary judgment as time-barred. Plaintiff subsequently filed suit against Defendant, claiming that her reliance on its legal advice deprived her of the opportunity to pursue the wrongful death and survivorship claims for her aunt's death. Upon review, the Supreme Court found the trial court did not abuse its discretion in its decisions in Plaintiff's case. Accordingly, the Court affirmed the jury verdict against Plaintiff. View "Puppolo v. Donovan & O'Connor, LLC" on Justia Law