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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2018 NY Slip Op 03795 [161 AD3d 1478]
Regular Panel Decision
May 24, 2018

Matter of Attorneys In Violation of Judiciary Law § 468-a. (Ettelson)

Julie Ann Ettelson, now known as Julie A. Laczkowski, was suspended from practicing law in 2009 due to noncompliance with attorney registration requirements under Judiciary Law § 468-a. She filed a motion for reinstatement in April 2018, which was reviewed by the Attorney Grievance Committee. The Committee provided findings and deferred to the Court's discretion. The Appellate Division, Third Department, found that the respondent met all requirements for reinstatement, including completing the Multistate Professional Responsibility Examination, maintaining current registration, and demonstrating good character and fitness. The Court also determined that her reinstatement would serve the public interest. Consequently, the Court granted her motion and reinstated her as an attorney.

Attorney ReinstatementProfessional MisconductJudiciary LawAttorney Grievance CommitteeAppellate DivisionAttorney RegistrationDisciplinary ProceedingsLegal EthicsSuspension of AttorneyCharacter and Fitness
References
11
Case No. MISSING
Regular Panel Decision
Jul 07, 1978

SOCIALIST WKRS. PARTY v. Attorney General of US

This case involves an action by the Socialist Workers Party (SWP) and the Young Socialist Alliance (YSA) against various federal agencies and officials, primarily the Attorney General and the FBI, for alleged constitutional violations stemming from extensive FBI informant activities and disruption programs. The current opinion addresses the Attorney General's refusal to comply with a May 31, 1977, court order to produce 18 confidential FBI informant files to plaintiffs' counsel. The court rejected the Attorney General's arguments concerning informant confidentiality, appellate review, and alternative sanctions, emphasizing the files' indispensable nature for the litigation of plaintiffs' claims, which include demands for damages and injunctive relief. The court ruled that the Attorney General must comply with the production order by July 7, 1978, or face civil contempt, underscoring the judiciary's power to enforce orders even against high-ranking government officials.

Informant ConfidentialityDiscovery DisputeCivil ContemptGovernment MisconductFBI SurveillancePolitical OrganizationsFirst Amendment RightsConstitutional ViolationsAppellate ReviewAttorney General
References
35
Case No. MISSING
Regular Panel Decision

Jones v. District Attorney's Office of New York

Thomas Jones, currently incarcerated, filed an Article 78 proceeding to vacate the denial of his FOIL request by the District Attorney’s Office of the County of New York (DANY). Jones sought a trial verdict sheet from his 2000 conviction for conspiracy and assault. DANY denied the request, stating Judiciary Law § 255, which Jones cited, applies only to court clerks, not district attorneys. The court affirmed DANY's denial, ruling that district attorneys are not clerks of the court, and also found Jones's claims to be time-barred under the four-month statute of limitations for Article 78 proceedings. The petition was consequently denied and dismissed with prejudice.

FOIL RequestVerdict SheetArticle 78 ProceedingStatute of LimitationsDistrict AttorneyCourt ClerkJudiciary LawPenal LawCriminal ConspiracyAssault
References
3
Case No. MISSING
Regular Panel Decision
Aug 16, 1988

In re the Grand Jury Subpoenas Served Upon Doe

The Grand Jury of New York County issued subpoenas duces tecum to the law firm of John Doe, P. C., seeking various records. John Doe, P. C. moved to quash or modify these subpoenas, asserting attorney-client and attorney work product privileges. After an in camera review of 109 files, the court denied the attorney-client privilege claim for two files due to insufficient proof of confidentiality. For the work product privilege, the court applied the crime-fraud exception for specific subpoenaed records, citing an ongoing investigation into corruption in personal injury litigation. The court also narrowly construed the work product privilege. Consequently, the motion was granted for eight specific files found to contain protected attorney work product, while denied for the remaining files. The records not protected by privilege were ordered to be delivered to the District Attorney by August 18, 1988, following service of the decision on August 16, 1988.

attorney-client privilegework product privilegesubpoenas duces tecumGrand Jury investigationcrime-fraud exceptionin camera inspectionlegal ethicsconfidentialityevidence disclosuremotion to quash
References
12
Case No. MISSING
Regular Panel Decision

In re Grand Jury Proceedings Special Investigation 1198/82

The Bureau of Community Services, an authorized child care agency, moved to quash a subpoena issued by the District Attorney for confidential records concerning three children believed to be victims of crimes, sought in a Grand Jury investigation. The Bureau argued these records were protected by various privileges, including social worker/client, attorney/client, physician/patient, and Social Services Law § 372. The District Attorney contended that the social worker/client privilege did not apply to child victims under CPLR 4508 (subd 3). The court, citing precedent from *Matter of Grand Jury Proceedings (Doe)*, ruled that evidentiary privileges, though important, should not obstruct legitimate Grand Jury investigations into criminal activity, especially when the Grand Jury operates in secrecy. Consequently, the motion to quash the subpoena was denied in all respects. The court did order the District Attorney to photocopy the subpoenaed materials and return the originals to the agency within five working days.

SubpoenaMotion to QuashConfidentialitySocial Worker-Client PrivilegeAttorney-Client PrivilegePhysician-Patient PrivilegeGrand Jury InvestigationChild VictimsSocial Services LawCPLR
References
5
Case No. MISSING
Regular Panel Decision

Legal Aid Society v. Association of Legal Aid Attorneys

The Legal Aid Society sought a preliminary injunction against the Association of Legal Aid Attorneys and its officers to prevent the disciplining of striking union members who crossed picket lines. The plaintiff also claimed tortious interference and a civil rights conspiracy under 42 U.S.C. § 1985(3) on behalf of itself, non-striking attorneys, and indigent clients. The District Court denied the injunction, finding several impediments to success on the merits. These included the NLRB's primary jurisdiction, the Norris-LaGuardia Act's prohibitions, and the plaintiff's lack of standing for third-party claims. Furthermore, the court determined that the conspiracy allegations under Section 1985(3) were conclusory and lacked substantial merit.

Labor DisputePreliminary InjunctionUnion DisciplinePicket LinesNational Labor Relations Act (NLRA)Norris-LaGuardia ActStanding (Law)Conspiracy (Law)Civil Rights (42 U.S.C. § 1985(3))Tortious Interference
References
32
Case No. MISSING
Regular Panel Decision

People v. McHugh

The defendant, Michael McHugh, is on trial for manslaughter and reckless driving. The District Attorney sought to introduce testimony from registered nurses and a certified social worker concerning admissions made by McHugh in his Montefiore Hospital records. McHugh moved to prohibit this testimony, citing doctor-nurse (CPLR 4504) and social worker (CPLR 4508) privileges. The District Attorney argued that McHugh waived the privilege or that the statements were not privileged. The court first ruled that McHugh's limited use of hospital records during a CPL 710.30 suppression hearing, solely to demonstrate medical condition relevant to the voluntariness of statements, did not constitute a complete waiver of privilege. Subsequently, the court concluded that the statements to the nurses and social worker were made in a professional capacity, necessary for treatment, and intended to be confidential, thus establishing the existence of the privilege. Therefore, the defendant's claim of privilege was granted, and the testimony was prohibited.

Doctor-Patient PrivilegeSocial Worker PrivilegeWaiver of PrivilegeEvidentiary RulingSuppression HearingConfidential CommunicationsMedical Records AdmissibilityCriminal ProcedureCPLR 4504CPLR 4508
References
11
Case No. 2020 NY Slip Op 04524 [186 AD3d 23]
Regular Panel Decision
Aug 13, 2020

Matter of Doris

The Attorney Grievance Committee (AGC) initiated a disciplinary proceeding against attorney Lawrence A. Doris following client complaints of professional misconduct, including failure to file a personal injury case and lack of communication. Despite numerous attempts by the AGC through letters, emails, and a judicial subpoena, Mr. Doris failed to respond to the allegations or appear for a deposition. The AGC subsequently moved for his immediate suspension from the practice of law due to his willful noncompliance and failure to cooperate with their investigation. The Appellate Division, First Department, granted the AGC's motion, finding that Mr. Doris's conduct warranted immediate suspension. This decision underscores the importance of attorney cooperation in disciplinary matters and protection of the public interest.

Attorney disciplineProfessional misconductNoncooperation with investigationImmediate suspensionGrievance CommitteeClient complaintFailure to communicateJudicial subpoenaPublic interest threatAppellate Division
References
6
Case No. 12-CV-7527 (JMF)
Regular Panel Decision

United States v. Wells Fargo Bank, N.A.

This civil fraud case, brought by the United States against Wells Fargo Bank, N.A. and Kurt Lofrano, addresses a novel issue in the Second Circuit: whether an employee can assert an advice-of-counsel defense by disclosing privileged communications when the employer holds the privilege and refuses to waive it. Defendant Kurt Lofrano sought to use advice from Wells Fargo's counsel as a complete defense against claims under the False Claims Act and FIRREA. Wells Fargo, however, moved for a protective order to prevent the disclosure of its attorney-client privileged communications. The Court, citing Supreme Court precedent in Swidler & Berlin, concluded that a balancing test between the importance of evidence and the attorney-client privilege is not applicable in civil cases. Consequently, the Court granted Wells Fargo's motion for a protective order, precluding Lofrano from asserting the advice-of-counsel defense using the Bank's privileged information.

Attorney-Client PrivilegeAdvice of Counsel DefenseCorporate PrivilegeEmployee Privilege WaiverProtective OrderCivil FraudFalse Claims ActFIRREAImplied WaiverEvidentiary Rules
References
28
Case No. 2018 NY Slip Op 03468 [161 AD3d 132]
Regular Panel Decision
May 10, 2018

Matter of Machado

This case involves reciprocal discipline against attorney Esmeralda Machado. The Attorney Grievance Committee for the First Judicial Department sought to discipline Machado based on a New Jersey Supreme Court order permanently barring her from appearing pro hac vice due to unauthorized practice of law, dishonesty, and conduct prejudicial to the administration of justice. Machado had repeatedly failed to pay required fees, continued to practice in New Jersey despite her pro hac vice admission terminating, misused another attorney's letterhead, and made false statements in a divorce proceeding. The New York Appellate Division, First Department, granted the motion for reciprocal discipline, suspending Machado from the practice of law in New York for two years, effective June 11, 2018. The court found her misconduct in New Jersey would also constitute misconduct in New York.

Attorney MisconductUnauthorized Practice of LawReciprocal DisciplineProfessional EthicsSuspensionNew Jersey Disciplinary ProceedingsFalse StatementsFraudDishonestyAppellate Division First Department
References
10
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