Tag Archives: putative class action

Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

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Filed under Appellate, attorneys, courts, legal decision, Minnesota, rules, sanctions, Supreme Court

VA Can’t Refuse To Treat Medical Conditions Of Inmates

The District Court for the Western District of Virginia refused to dismiss a class action alleging that a womens prison in Virginia fails to treat medical conditions as a way to cut costs.

Five prisoners at Fluvanna Correction Center for Women FCCW in Troy, Va., are leading the charge against the Virginia Department of Corrections VDOC, which they say routinely violates Eighth Amendment rights and shows deliberate indifference to medical needs.

U.S. District Judge Norman Moon denied the states motion to dismiss Tuesday.

“Plaintiffs allege that, as a result of cost-saving concerns, medical personnel at FCCW have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns,” he wrote. “Indeed, the complaint is replete with specific examples of how Plaintiffs have been adversely affected as a result of this concern.”

The decision states that officials with the Virginia Department of Corrections allegedly received hundreds of grievances, which should have notified them of a continuing problem at the prison facility.  Consequently, Judge Moon held that the class may proceed.

“Given that plaintiffs have alleged that the VDOC defendants remained inactive despite personal knowledge of information disclosing alleged ongoing deficiencies in medical care, plaintiffs Eighth Amendment claim may proceed against them directly.”

The complaint alleges the prison refused to treat medical conditions in the following examples of the putative class representatives.

  • The prison failed to give the proper dosage of medication prescribed to Cynthia Scott after she was diagnosed with sarcoidosis, a disease that formed nodules in her lungs, spleen and liver. Scott also allegedly developed a blood clot in her leg that was left untreated until it traveled to her lungs.
  • Bobinette Fearce, a second named plaintiff, says she has degenerative disc disease, causing her chronic pain. The prison doctors allegedly refused to give her enough Tylenol to alleviate her pain. She also claims to suffer from incontinence and must wear a diaper at all times, but an FCCW doctor said she is “too old to be afforded the surgery that would correct her bladder condition.”
  • Patricia Knight says that a stroke caused her to lose grip strength and made walking difficult. Because her conditions allegedly prevent her from performing any prison job, Knight says she cannot afford the $5 “co-pay” for prison medical visits and therefore gets little medical care.
  • Marguerite Richardson says she visited the medical staff when she developed a number of boils on her leg. A test found that she had a highly contagious antibiotic-resistant infection, but the prison waited five months to give her medication to treat the infection, the complaint states.
  • Rebecca Scott, the fifth plaintiff, allegedly suffers from recurring tonsillitis. She says an FCCW doctor told her he “does not believe in removal of tonsils by surgery,” that the prison has rejected her requests to see an outside specialist.

via Courthouse News Service.

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Filed under civil rights, legal decision