06/17/2013 · 3:48 PM

Illinois Hearing Board recommends 5 month suspension for lawyer who posted undercover video related to client on Youtube and alleged that the drugs were planted

Hello and welcome to this Ethics Alert blog which will discuss the recent report and recommendation of an Illinois disciplinary hearing board that an Illinois lawyer be suspended for 5 months for posting an undercover video of an alleged drug transaction of his client on Youtube and alleged that the drugs were planted.  The disciplinary case is In re Jesse Raymond Gilsdorf, Commission No. 2012PR00006 (June 4, 2013).  The disciplinary Complaint is here: https://www.iardc.org/12PR0006CM.html and the Board’s Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10978.    

According to the Report and Recommendation, “the charges of misconduct arose out of  the Respondent knowingly posting on an Internet site, and showing to others, a DVD video he received from the state’s attorney while representing a criminal  defendant.  The video showed the undercover drug transaction between Respondent’s  client and a confidential police source.  The Respondent entitled the video ‘Cops and Task Force Planting Drugs,’ which was false.  By posting the video while his client’s criminal case was pending, Respondent intended to persuade residents of the county that the police or other government officials acted improperly in the prosecution of his client.

The Hearing Board found that the Respondent engaged in the misconduct charged in both counts.  Specifically, he revealed information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation; failed to reasonably consult with the client about the  means by which the client’s objectives are to be accomplished); made extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding; engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.”

The report and recommendation of the hearing board will now be considered by the Illinois disciplinary review board and will ultimately be reviewed by the Illinois Supreme Court for a final disciplinary opinion.

Bottom line: This is another example of the use (or misuse) of social media potentially resulting in a lawyer’s discipline.  Lawyers must be aware of the requirement of maintaining client confidentiality and the risk of making statements that are false about a client’s case as well as the inherent dangers of using social media in the lawyer’s practice.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me. 

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

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06/12/2013 · 5:26 PM

Florida Bar’s Professional Ethics Committee will consider approval of Proposed Advisory Opinion 12-3 on cloud computing ethics at its meeting on June 28, 2013

Hello and welcome to this Ethics Alert blog with an update on the status of The Florida Bar’s Proposed  Advisory Opinion 12-3 on the ethics of cloud computing and protecting client confidences when lawyers want to store records in the digital “cloud” using third party vendors.  The Florida Bar’s Professional Ethics Committee (PEC) will consider approval of the proposed opinion at its June 28, 2013 meeting in Boca Raton in conjunction with The Florida Bar’s annual convention.  The proposed advisory opinion is also on the Bar’s website at: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/186D086CDDCBF92F85257B01007A5091/$FILE/12-03%20PAO.pdf?OpenElement

The opinion concludes that storing client confidential information and documents in the “cloud” is ethical with several important caveats.  “This Committee (PEC) agrees with the opinions issued by the states that have addressed the issue. Cloud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it. As indicated by other states that have addressed the issue, lawyers must perform due diligence in researching the outside service provider(s) to ensure that adequate safeguards exist to protect information stored by the service provider(s).  New York State Bar Ethics Opinion 842 suggests the following steps involve the appropriate due diligence:

 

Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;

 

Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;

 

Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.”

If proposed advisory opinion 12-3 is approved by the PEC, Florida will join at least 11 other states which have issued ethics opinions finding that cloud computing is ethical and providing guidelines for its use.  As I also previously advised, Florida Bar Advisory Ethics Opinion 10-2 also provides guidance to lawyers to insure that confidential client information on the hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.

Bottom line:  After ethics advisory opinion 12-3 is finalized, it will provide Florida lawyers with more specific guidance on the ethics of cloud computing.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality and privilege, Florida lawyer cloud computing, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinion cloud computing, Lawyer ethics opinions

06/10/2013 · 11:12 PM

Supreme Court of Florida issues opinion implementing Code for Resolving Professionalism Complaints

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida implementing a Code for Resolving Professionalism Complaints.  The Florida Supreme Court’s opinion is In re: Code for Resolving Professionalism Complaints, No. SC13-688 (June 6, 2013) and is online at: http://www.floridasupremecourt.org/decisions/2013/sc13-688.pdf.  The new Code is appended to the Court’s opinion.

The Court’s opinion noted that the issue of civility/professionalism has been studied for many years (since at least 1989) and that the Supreme Court Commission on Professionalism had submitted a study concluding that “further integrated, affirmative, practical and active measures are now needed.”

The opinion also stated that “(o)ver the years, we have come to understand that professionalism or acceptable professional behavior is not simply a matter of character or principles nor is it simply an issue of rule following or rule violating.  To the contrary, unacceptable professional conduct and behavior is often a matter of choice or decision making. Therefore, we accept the proposal of the Professionalism Commission to create a structure for affirmatively addressing unacceptable professional conduct.  This first step admittedly contains small initial measures designed to firmly encourage better behavior.”

Bottom line:  As I have indicated in previous Ethics Alerts, the Florida Supreme Court has been very active in addressing the professionalism of Florida lawyers both in and out of Bar disciplinary matters and the implementation of this Code for Resolving Professionalism Complaints is a manifestation of those continued efforts.  In my experience, the reporting of professionalism complaints is very infrequent and circuit lawyer professionalism committees are vastly underutilized.  I would encourage Florida lawyers to consider using the professionalism committee as a step toward resolving such issues.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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05/20/2013 · 12:38 PM

New York lawyers who convinced a client to falsify the facts of her injury and then covered it up are suspended for 9 months

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York Appellate Division opinion suspending two lawyers who convinced a client to falsify the facts underlying her injury and then covered it up when another lawyer was retained as co-counsel. The opinion is Matter of Rios (and Levy), 2013 NY Slip Op 03439 (App. Div. First Dept. May 14, 2013).  The New York disciplinary opinion is at http://www.nycourts.gov/reporter/3dseries/2013/2013_03439.htm. 

According to the (long and somewhat stilted) opinion, within a few months of opening their law firm in January 2008, the two lawyers were retained by a client who said she had been injured in a church sidewalk fall.  By May 2008, the lawyers apparently knew that the woman’s initial story would not establish a sufficient basis for a lawsuit and they decided to assist the client to manufacture a false story to support an alternative legal claim by “explaining” the law to her.         

The client then changed her story and the lawyers filed a lawsuit against a new defendant who owned a home across the street from the church.  After the litigation was in a trial posture, the lawyers realized that, due to their lack of prior experience, they were not prepared to try the case without assistance and they brought in another lawyer.  In order to prevent that lawyer from learning that the client changed her story, they removed documents from the file that showed that they had initially pursued a claim against the church.

The lawyers stipulated to the facts, admitted guilt on two of the three Bar rule violations, and presented evidence of their public and community service activities as mitigation.  A disciplinary hearing panel recommended that the lawyers be found guilty of all charges and be suspended for 9 months and the lawyers appealed.           

The appellate opinion affirmed the panel’s findings that the lawyers had violated all three Bar rules, including engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in conduct that adversely reflects on a lawyer’s fitness as an attorney, and taking on a legal matter that a lawyer knows or should know he or she not competent to handle without associating with a competent lawyer.

According to the opinion, “(b)ased on the record, it is clear that respondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception”.  ”Thereafter, respondents, with full knowledge that they were perpetrating a fraud, commenced an action against an innocent third party, filing papers, such as pleadings, containing misrepresentations with the court.  Then, for a over a year, respondents continued to conduct discovery and attend court conferences with full knowledge that the action they were pursuing was based on a misrepresentation which they themselves influenced.

“When forced to retain trial counsel, respondents not only failed to apprise counsel that their client’s accident did not occur where she alleged, but in order to conceal their prior misconduct, they sanitized the case file, removing any evidence as to the accident’s actual situs. While respondents never expressly admitted that their behavior was motivated by financial gain, in a case where their legal fee would be determined by the amount they were able to recover for their client, it is clear that respondents engaged in the misconduct alleged and to which they admitted for financial gain and with venal intent.”

Bottom line:  This case is another example of lawyers who, apparently in pursuit of money, encouraged a client to make false statements regarding the facts of a claim.  In this case, the lawyers compounded their improper conduct by covering it up.  The misconduct was discovered when they found out that they were in over their heads and had to associate another lawyer with more experience.  

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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05/14/2013 · 2:13 PM

Florida 2nd District Court of Appeal holds that in camera review is required before court can require privileged documents to be produced

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Florida Second District Court of Appeal granting a petition for writ of certiorari quashing a discovery order compelling the production of allegedly privileged documents without first conducting an in camera inspection todetermine whether the privilege applies. The opinion is Patrowicz v. Wolff, — So.3d —-, 2013 WL 1352488 (Fla. 2d DCA April 05, 2013).  The opinion is http://www.flprobatelitigation.com/uploads/file/2D12-5535.pdf

In this case, the lawyer was an estate planner for the decedent and counsel for the personal representative of the estate and was served with a subpoena for his records as the non-party estate planner, not as probate counsel.  The lawyer objected and the court ordered that the documents be produced without reviewing the documents in camera.  The lawyer filed a petition for writ of certiorari to the 2nd District Court of Appeal.

The 2nd DCA granted the petition and quashed the trial court’s order.  According to the opinion, which was authored by Judge Khouzam, “(a) trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari.” Bennett v. Berges, 84 So.3d 373, 374-75 (Fla. 4th DCA 2012). A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure. Id. at 375. This is equally true where the subpoena on its face requests communications between attorney and client. See Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002). The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law. See Snyder v. Value Rent–A–Car, 736 So.2d 780, 782 (Fla. 4th DCA 1999).”

“(T)he reason we must quash the order is that the trial court ordered production of the documents without first reviewing them and determining whether the attorney-client privilege applied. Not only did (the lawyer) specify that his objection was based on the attorney-client privilege, but the subpoena on its face explicitly requested communications between an attorney and his client. Consequently, the trial court was required to conduct an in camera inspection of the documents prior to ordering their disclosure. We therefore quash the order compelling the production of the documents and remand the case for further proceedings.”

In Bennett v. Berges, the 4th DCA stated that the trial court properly ordered an in camera review of the relevant documents claimed to be privileged; however, it denied the petition for writ of certiorari as premature.  “After an in camera inspection, the trial court may determine that the documents are privileged and uphold Petitioners’ objection to the discovery request. Accordingly, because the order requires a party to submit allegedly protected materials only for an in camera inspection, and the trial court may never require disclosure of the documents to the opposing party, we hold that the petition is premature (citing cases).  Whether the trial court has misapprehended the scope of the privilege is a question we need not decide because to date, no discovery has been ordered. Accordingly, the petition is denied.”

Bottom line:  If the lawyer does not believe that the confidential file should be provided, he or she should object to the subpoena and insist on an in camera review, which is required under Patrowicz v. Wolff.  The duties and obligations of an estate planning lawyer when the confidential file is subpoenaed in estate litigation are addressed in Florida Bar Advisory Ethics Opinion 10-3, which I have addressed in previous Ethics Alerts and in seminars.  The advisory opinion is attached and should be carefully examined and followed by any lawyer who may have to address this issue.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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