Department of Justice Once Again Proves Its Loyalty to the President, Not the Rule of Law

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the recent news that the Justice Department will seek dismissal of charges against Michael Flynn. Sarat suggests that because the decision does not seem to advance the fair administration of justice in this case, the court should take the unusual step of refusing to grant the prosecutor’s motion to dismiss.

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Hitkansut LLC v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1884

Opinion Date: May 1, 2020

Judge: Sharon Prost

Areas of Law: Government Contracts, Intellectual Property, Legal Ethics, Patents

Hitkansut owns the patent, entitled “Methods and Apparatus for Stress Relief Using Multiple Energy Sources.” While the application that later issued as that patent was pending, Hitkansut entered into a non-disclosure agreement with Oak Ridge National Laboratory (ORNL) and provided ORNL with a copy of the then-unpublished patent application. ORNL staff prepared research reports, received funding, authored publications, and received awards for research, based upon unauthorized use of the patent. Hitkansut sued ORNL, alleging infringement under 28 U.S.C. 1498. The Claims Court determined that certain claims of the patent were invalid but that other claims were valid and infringed. Although Hitkansut originally sought a royalty between $4.5-$5.6 million, based on a percentage of the research funding obtained by ORNL, the Claims Court awarded $200,000, plus interest, as the hypothetically negotiated cost of an up-front licensing fee. The Federal Circuit affirmed. Hitkansut then sought attorneys’ fees and expenses under 28 U.S.C. 1498(a). The Claims Court awarded $4,387,889.54.The Federal Circuit affirmed. Section 1498(a) provides for the award of attorneys’ fees under certain conditions, unless “the court finds that the position of the United States was substantially justified.” The “position of the United States” in this statutory provision refers to positions taken during litigation and does not encompass pre-litigation conduct by government actors, but the examples of conduct cited by the Claims Court demonstrate that the position of the United States was not substantially justified even under this narrow definition

Nelson v. Tucker Ellis, LLP

Court: California Courts of Appeal

Docket: A153661(First Appellate District)

Opinion Date: May 5, 2020

Judge: Frank Y. Jackson

Areas of Law: Civil Procedure, Legal Ethics

Nelson, a California attorney specializing in asbestos defense, was employed by Tucker. Tucker’s personnel handbook stated that all documents, including email and voicemail, received, created, or modified by any attorney are Tucker's property. In 2008, Nelson exchanged e-mails with Gradient, a scientific consult on litigation, about medical research articles relating to causes of mesothelioma. Counsel in a Kentucky litigation matter served Tucker with a subpoena seeking documents related to payments made by Tucker to Gradient to fund medical research articles and communications between Tucker and Gradient regarding such articles. Tucker withheld certain documents on the basis of attorney-client and the attorney work-product privileges but produced the e-mails authored by Nelson, who had left the firm. Nelson, subpoenaed for a deposition, claimed the e-mails contained his privileged attorney work-product and demanded they be sequestered and returned to him. Nelson filed suit, claiming that as a result of Tucker’s production of his e-mails, his work-product was available on the Internet and disseminated to asbestos plaintiffs’ attorneys, interfering with his ability to work effectively and resulting in his termination from his new firm. After Tucker’s unsuccessful attempt to compel arbitration and unsuccessful anti-SLAPP motion, the trial court ruled in favor of Nelson. The court of appeal reversed, concluding that Tucker, not Nelson, was the holder of the attorney work-product privilege with respect to the emails. On remand, the trial court granted Tucker judgment. The court of appeal affirmed. Each of Nelson’s claims was barred by the law of the case or by the litigation privilege, Civil Code 47(b).

Persichette v. Owners Ins. Co.

Court: Colorado Supreme Court

Citation: 2020 CO 33

Opinion Date: May 4, 2020

Judge: Samour

Areas of Law: Civil Procedure, Insurance Law, Legal Ethics

William Persichette, through Franklin D. Azar & Associates, P.C., brought an underinsured-motorist (“UIM”) action against Owners Insurance Company (“Owners”) for allegedly handling his insurance claim unreasonably and in bad faith. About three months later, Persichette retained Mark Levy of Levy Law, P.C. (collectively “Levy Law”) as co-counsel. Owners promptly moved to disqualify Levy Law pursuant to Colo. RPC Rule 1.9(a) on the ground that Levy Law was Owners’ longtime former counsel and had a conflict of interest. The district court denied the motion, finding that Levy Law’s representation of Persichette was not “substantially related” to Levy Law’s decade-plus representation of Owners. Owners then filed a C.A.R. 21 petition invoking the Colorado Supreme Court's original jurisdiction. The Supreme Court concluded the district court erred in denying Owners’ motion to disqualify, and reversed.

Feltman, et al. v. Gaustad, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 89

Opinion Date: May 7, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Legal Ethics

Roger Feltman and TRRP LLC (Feltman) appeal a district court judgment dismissing their malpractice lawsuit against attorney Daniel Gaustad and the Pearson, Christensen & Clapp law firm (Gaustad). The court concluded summary judgment was appropriate because Feltman failed to establish a factual dispute as to the elements of legal malpractice. Finding no reversible error in that decision, the North Dakota Supreme Court affirmed judgment.