North Carolina lawyer reprimanded for sending ex-parte e-mails to judge and law clerk in “extremely contentious” divorce matter

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent reprimand of a North Carolina lawyer for sending ex-parte e-mails to the judge and the judge’s law clerk in a “protracted and extremely contentious domestic case”. The reprimand is: In the Matter of Claire J. Samuels, NC Case No. 13G0801 (May 23, 2014) and is at: http://www.ncbar.com/orders/samuels,%20claire%20reprimand%2013g0801.pdf

According to the reprimand, the lawyer represented the wife in a protracted and extremely contentious domestic case against the husband, who apparently was also a lawyer. On “numerous occasions”, the lawyer “argued the merits of the case through emails to the judge and her clerk. The emails were improper and violated Rules 3.S(a)(3) and 8A (d) of the Rules of Professional Conduct.” The lawyer stated in her response to the Bar grievance that she was “only responding, as an advocate for (the) client, to the e-mails that (the husband) first presented to the court.”

The reprimand states that “(t)he Grievance Committee believed that because you were an advocate for your client, you were obligated to take the high road and not engage in those improper communications with (the husband). Finally, the Grievance Committee was concerned about your unprofessional conduct as exhibited in an April 26, 2013 email to (the husband) where you lost your objectivity as an attorney and got “personal” with (the husband). In that email you stated, ‘You’re a terrible husband, father, lawyer, and human being.’ The Committee cautions you to maintain objectivity and professionalism, even in the face of a stressful and difficult case.

Bottom line: This case apparently involved a pro se opposing party (who was a lawyer) who allegedly started the ex-parte communications; however, the reprimand confirms that, regardless of who starts it, the lawyer is still not permitted to engage in ex-parte contact with a presiding judge. Oh, and lawyers also should probably not send an e-mail to the opposing party stating “You’re a terrible husband, father, lawyer, and human being.”

Let’s please be careful out there!

Disclaimer: this Ethics Alert is not an advertisement and 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
http://www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper ex parte contact with judge, Lawyer Professionalism, Lawyer sanctions

South Carolina Supreme Court prohibits another Florida lawyer from practicing law who solicited over the internet, made misrepresentations, and represented clients

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the South Carolina Supreme Court which prohibited another Florida lawyer who was not admitted in that state from admission to practice for soliciting over the internet and representing clients, making false statements, and failing to respond to the allegations, this time permanently. The opinion is: In the Matter of Alma C. Defillo, SC Case No. 27431 (August 13, 2014) and is at: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27431.pdf.

According to the opinion, formal disciplinary charges were filed against the lawyer, who was licensed to practice in Florida but not in South Carolina. The first count alleged that the lawyer opened an office in Greenville, South Carolina in 2012, “ostensibly to handle federal immigration matters. Respondent had no law partners or associates who were licensed in South Carolina except for a period of approximately fourteen days in August 2012. Respondent offered to provide legal services in South Carolina using methods specifically targeted at potential clients in South Carolina, including a law firm website, business cards, print advertisements, and radio commercials…”

“In connection with her representation of two clients in federal immigration matters, respondent sent letters to judges for the state circuit court in Greenville, requesting certification that the clients were crime victims. The letterhead contained the phrase “Attorneys and Counselors at Law” when, in fact, respondent had no partners or associates at the times the letters were written. Respondent’s letterhead included her Greenville office address without indicating the jurisdictional limitations on her ability to practice law.”

“Respondent advertised her law firm through the use of a website available to residents of South Carolina. Included on the website are references to respondent’s Greenville office. Respondent’s website contains material misrepresentations and omits facts necessary to make the contents considered as a whole not materially misleading. On her website, respondent advertises her office in Greenville but fails to state that she is not licensed to practice law in South Carolina or to otherwise set forth the jurisdictional limitations on her practice in this state. Further, respondent’s website is not limited to the promotion of her federal immigration practice as she advertises her experience in both criminal and family law and offers to ‘analyze the facts of [her prospective client's] case by applying current…State Laws.’ In addition to false and misleading statements regarding offers to practice in this jurisdiction, respondent repeatedly refers to the firm’s “lawyers” and “attorneys” when, in fact, respondent is a sole practitioner with no partners, only sporadically employing associates in her law firm.

“Respondent’s website compares her services with other lawyers’ services in a way that cannot be factually substantiated by stating her law firm is ‘unique’ because she and her staff are fluent in Spanish and English. Additionally, respondent includes forms of the words ‘specialist’ and ‘expert’ on her website even though she is not a specialist certified by this Court. Respondent promotes her law firm by distributing printed business cards. The business cards advertise her office in Greenville without disclosing the fact that respondent is not licensed to practice law in South Carolina or disclosing the geographical limitation of her law practice in this state.

“Respondent promotes her law firm by publication of print advertisements in Spanish-language magazines and other periodicals distributed in South Carolina. Respondent’s print media advertisements lists her office in Greenville without disclosing the fact that she is not licensed to practice law in South Carolina or disclosing the jurisdictional limitations on her practice in this state. Respondent promotes her law firm by broadcasting commercials on Spanish-language radio stations in South Carolina. Respondent’s radio commercials include reference to her office in Greenville without disclosing the fact that she is not licensed in South Carolina or disclosing the geographical limitations of her practice.”

The second count stated: “Respondent initially cooperated with the disciplinary investigation by timely submitting her responses to the notice of investigation and ODC’s subpoena for her client files and record of advertising dissemination. However, respondent failed to submit a response to the supplemental notice of investigation served on her on April 5, 2013. As a result of her failure to submit a response to the supplemental notice of investigation, ODC issued a notice for respondent to appear for an interview on May 23, 2013. Respondent contacted ODC and requested the interview be postponed.

“Pursuant to that request, ODC issued an amended notice to appear, setting the interview for May 31, 2013. Respondent failed to appear, although her husband called ODC thirty-two minutes before the scheduled interview time to state respondent would not be attending the interview due to a court appearance in Georgia. Respondent’s husband was asked to instruct respondent to contact ODC after her court appearance in Georgia to reschedule the interview. As a result of respondent’s failure to contact ODC pursuant to this instruction, ODC issued a third notice to appear, setting the interview for July 2, 2013. Respondent did not appear on July 2, 2013, and has not contacted ODC with regard to this disciplinary matter since that time.

“Respondent made the following false or misleading statements in her response to the initial notice of investigation that she submitted to ODC: My practice is limited to Immigration Law. I have [not] portrayed myself to practice any other law but federal immigration law. At no time I have portrayed myself to represent residence [sic] of South Carolina with any legal services other than those that are exclusively related to immigration law. I solely practice federal immigration law.”

The SC disciplinary hearing panel found that the lawyer was subject to discipline pursuant to SC Bar Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct or other rules of this jurisdiction regarding professional conduct of lawyers) and Rule 7(a)(3) (it shall be ground for discipline for lawyer to willfully violate valid order of Commission or hearing panel, willfully fail to appear personally as directed, or knowingly fail to respond to lawful demand from disciplinary authority to include request for response or appearance) and that she violated SC disciplinary rules related to advertising, false statements and other rules.

The opinion stated that South Carolina has jurisdiction over all allegations that a “lawyer” has committed misconduct and that the term “lawyer” includes “a lawyer not admitted in this jurisdiction if the lawyer …offers to provide any legal services in this jurisdiction [and] anyone whose advertisement or solicitations are subject to Rule 418, SCACR Rule 2(q).” The opinion also states that the “authority to discipline lawyers and the manner in which the discipline is imposed is a matter within the Court’s discretion. In the Matter of Berger, 2014 WL 1386688 (2014); In the Matter of Van Son, 403 S.C. 170, 742 S.E.2d 660 (2013). The misconduct in this matter is similar to that in In the Matter of Van Son, id., where a lawyer who was not admitted in this state sent solicitation letters to at least two South Carolina residents and, thereafter, failed to cooperate with ODC’s investigation. In addition to other sanctions, the Court barred the lawyer from admission in this state and from advertising or soliciting clients in South Carolina for a period of five years.”

“In the current matter, not only did respondent target residents of South Carolina through various forms of advertising including radio communications and print media, but she also held herself out as licensed to practice law in this state, welcomed clients with criminal and family law concerns, and sent letters on behalf of clients addressed to state court judges. Further, when she did participate in the disciplinary investigation, respondent made false statements of material fact concerning the extent of her practice and the extent of her advertising in South Carolina to ODC. Since then, respondent has failed to cooperate in the disciplinary investigation and to appear for the hearing. (citation omitted.

“We find it appropriate to permanently debar respondent from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing her to seek admission. Further, we prohibit respondent from advertising or soliciting business in South Carolina without first obtaining an order from this Court allowing her to advertise or solicit business in this state. Before seeking an order from this Court to either allow her to seek admission or to advertise or solicit, respondent shall complete the South Carolina Bar’s Legal Ethics and Practice Program Ethics School and Advertising School. Respondent shall pay the costs of the investigation and prosecution of this matter by ODC and the Commission within thirty (30) days of the date of this order.”

Bottom line: For the second time this year (the first was Berger in April, which I blogged about here: http://jcorsmeier.wordpress.com/2014/04/11/south-carolina-supreme-court-bans-florida-lawyer-from-practicing-law-who-solicited-over-the-internet-and-represented-clients-in-that-state/, the South Carolina Supreme Court has “debarred” a Florida lawyer from practicing law in that state for targeting SC residents on the internet and other forms of advertising, false advertising, and false statements in the disciplinary investigation and violating SC Bar rules, this time permanently.

Let’s be careful out there!

Disclaimer: this Ethics Alert is not an advertisement and 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
http://www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising rules, Lawyer disbarment, Lawyer discipline, lawyer discipline for failure to respond to complaint, Lawyer disciplined in state where not admitted, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements in response to Bar complaint, Lawyer misrepresentation, Lawyer sanctions, Lawyer websites

Connecticut lawyer agrees to a suspension for 4 months and career prohibition on representing women to resolve disciplinary allegations

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent media stories about a Connecticut lawyer who was suspended for four months and prohibited from representing female clients for the rest of his career after he was found guilty of representing women in family law and domestic-violence cases in violation of a 2010 Court Order.

The August 6, 2014 ABA Journal online article is here: http://www.abajournal.com/news/article/lawyers_suspension_includes_lifetime_ban_on_representing_women/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email and the Connecticut Law Journal article is here: http://www.ctlawtribune.com/home/id=1202665886913?slreturn=20140706064608 (requires subscription).

According to the ABA Journal article, the Connecticut Law Tribune reported that the Connecticut lawyer was suspended for four months and prohibited from representing female clients for the rest of his career after he was found guilty of representing women in family law and domestic-violence cases in violation of a 2010 disciplinary Order. The Connecticut disciplinary counsel had sought disbarment for the lawyer, named Ira Mayo, alleging that he had violated the Order at least 11 times. The lawyer apparently agreed to the suspension and career prohibition on representing women to resolve the disciplinary complaint.

The lawyer was found guilty of improper conduct in two prior discipline cases, according to the ABA Journal article. In one, he was suspended for 15 months after he was accused of making unwanted advances to female clients referred to him by a group for abused women. In the second, he was prohibited from representing women in family law or domestic violence cases after he was accused of offering to waive attorney fees in exchange for a massage.

Bottom line: Some (many) might say that this result was quite generous to the lawyer. There is no mention in the article as to whether the lawyer was sued for his alleged misconduct.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog is not an advertisement and 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
http://www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline alleged sexual misconduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Florida Supreme Court disbars lawyer for, inter alia, making agreement with defendant for payment to make the case “go away” while representing victim

Hello everyone and welcome to this Ethics Alert blog (with a corrected title) which discusses the recent the Florida Supreme Court Order which upheld a referee’s report and disbarred a Florida lawyer for, inter alia, making an agreement with a defendant in a criminal matter for payment to make the criminal case “go away” while representing the victim in the same case. The case is: The Florida Bar v. Mark F. Germain, SC12-1981 and SC12-2289 (July 8, 2014) and the Order is here: http://www.floridasupremecourt.org/clerk/dispositions/2014/07/12-1981_12-2289.pdf.

According to the referee’s report, which was adopted by the Florida Supreme Court, Jeffrey Bowman was arrested in Lake County, Florida on or about July 1, 2011, following an alleged domestic battery on Bonnie DePaolo. Bowman was later released and ordered to have no contact with DePaolo as a condition of his pretrial release. An Assistant State Attorney met DePaolo on the day of Bowman’s bond hearing and she said that she was very upset that Bowman was bonding out of jail.

According to testimony by the lawyer, Bowman was the subject of a 2007 injunction regarding DePaolo and she also went to the hospital after the incident for the injuries Bowman allegedly caused. DePaolo’s sister, Rita Hazlett, testified that, while DePaolo was staying with, a Sheriff’s deputy came to her house to warn her that Bowman had threatened to kill her and that he came into her yard, angry and waving a gun.

In early July 2011, the lawyer agreed to represent DePaolo, the victim in the matter. The lawyer then called the defendant, Bowman, and requested a meeting at a restaurant in order to make it “all go away.” Bowman testified that they discussed getting his belongings back and dropping the prosecution for “cash.” Bowman did not agree to this, and the settlement was not finalized.

The lawyer then called attorney John Bruce Bowman, the brother of Bowman, and suggested to him that Bowman pay a “substantial” amount of money to avoid prosecution. Attorney Bowman told him that the suggestion was extortion and he would not be a part of it. Attorney Bowman later reviewed a settlement agreement that was negotiated between Bowman and the lawyer. He also stated that the lawyer never discussed a civil settlement or claim and that the telephone call was about “saving money with a criminal lawyer and getting money to resolve a criminal matter.”

The lawyer testified that the content of the proposed settlement agreement was in an e-mail he sent to Jeffrey Bowman and attorney Bowman; however, attorney Bowman apparently never received a copy of any e-mail because of a “faulty e-mail address”. The lawyer also did not have DePaolo’s medical bills at the time of the agreement, which later exceeded $3,000.00.

The lawyer tried to resolve the criminal case before a July 14, 2011 meeting between the Assistant State Attorney and DePaolo so that Bowman would not have to “spend money” on a criminal defense attorney. The lawyer testified that he was aware of the Bar rules prohibiting compensating people to drop criminal charges and that he did not call the Florida Bar Hotline during the preparation of the agreement.

The lawyer then prepared a settlement agreement in which DePaolo would sign an Intent Not to Prosecute and “in good faith make every effort to ensure that there is no prosecution.” The agreement also contained the following statement: “I, attorney Mark F. Germain, hereby acknowledge receipt of $1,500 from Jeffrey ALLEN BOWMAN on behalf of BONNIE DEPAOLO as compensation for the concessions made herein.” (emphasis supplied). The agreement was signed July 10, 2011, by both the lawyer and DePaolo; however, the lawyer never received the $1,500.00 from Jeffrey Bowman.

Soon after the agreement was signed, the lawyer called attorney James Hope, who was his supervising attorney for probation imposed in a previous Bar matter, regarding the agreement. “Mr. Hope dissuaded (the lawyer) from using the language in paragraph three, but (the lawyer) continued to press as to why he thought the language was appropriate. Mr. Hope told (the lawyer), ‘I wouldn’t touch that with a ten foot pole.’ (The lawyer) then admitted that the agreement was not a proposal, and that he had already signed it.”

The referee found that the lawyer did not competently in representing DePaolo, including the failure to obtain an injunction, which would have “greater enforceability and consequences for violation than a ‘no contact’ order from first appearance (an order prohibiting contact with Ms. DePaolo as a condition of pretrial release). He also waived her ability to seek personal injury damages, without knowing what those damages were, and then encouraged settlement for a sum of money far below the actual costs she incurred for medical treatment.”

The referee also found “(the lawyer) also discouraged the criminal prosecution of the ‘perpetrator’ in this case, which prosecution may have resulted in further protections and restitution for Ms. DePaolo. He attempted to negotiate a settlement which was beneficial to Jeffrey Bowman and detrimental to Bonnie DePaolo, and he attempted to extort funds from Jeffrey Bowman in exchange for a declination of prosecution. In addition to the harm this caused to Ms. DePaolo, Respondent ultimately interfered with the State’s prosecution of Jeffrey Bowman by negotiating terms encouraging Ms. DePaolo’s non-participation as a witness in the case.”

The referee also found that “(the lawyer) was misleading during the Bar’s investigation of this matter. For example, he prepared two affidavits for Ms. DePaolo, which were at best self-serving testimony, and were not accurate. During the hearing, Ms. DePaolo could not even read portions of the Affidavits, and it was clear that the contents were not her testimony. These affidavits were prepared at critical points in the disciplinary process. (The lawyer) also gave deposition testimony that was not accurate.”

After listing the Bar Rules that the lawyer violated, including 4-1.1, 4-1.7(a)(2), 4-3.4(b), 4-8.4(a), and 4-8.4(d), applying the Florida Standards for Imposing Lawyer Sanctions, mitigation and aggravation, and case law, the referee recommended that the lawyer be held in contempt of his probation and permanently disbarred. In a one page Order, the Florida Supreme Court upheld the referee’s findings and found the lawyer in contempt; however, the Court reduced the permanent disbarment to a 5 year disbarment.

Bottom line: This is a somewhat bizarre set of facts to say the least and, according to the referee’s report, the lawyer apparently knew that what he was doing was a violation of the Bar rules. He will now have 5 plus years to think about it.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog is not an advertisement and 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
http://www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of competence, Lawyer lack of diligence, Lawyer sanctions

Florida Supreme Court disbars lawyer for, inter alia, making agreement with defendant for payment to make the case “go away” while representing victim

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent the Florida Supreme Court Order which upheld a referee’s report and disbarred a Florida lawyer for, inter alia, making an agreement with a defendant in a criminal matter for payment to make the criminal case “go away” while representing the victim in the same case. The Order is: The Florida Bar v. Mark F. Germain, SC12-1981 and SC12-2289 (July 8, 2014) and is here: http://www.floridasupremecourt.org/clerk/dispositions/2014/07/12-1981_12-2289.pdf.

According to the referee’s report, which was adopted by the Florida Supreme Court, Jeffrey Bowman was arrested in Lake County, Florida on or about July 1, 2011, following an alleged domestic battery on Bonnie DePaolo. Bowman was later released and ordered to have no contact with DePaolo as a condition of his pretrial release. An Assistant State Attorney met DePaolo on the day of Bowman’s bond hearing and she said that she was very upset that Bowman was bonding out of jail.

According to testimony by the lawyer, Bowman was the subject of a 2007 injunction regarding DePaolo and she also went to the hospital after the incident for the injuries Bowman allegedly caused. DePaolo’s sister, Rita Hazlett, testified that, while DePaolo was staying with, a Sheriff’s deputy came to her house to warn her that Bowman had threatened to kill her and that he came into her yard, angry and waving a gun.

In early July 2011, the lawyer agreed to represent DePaolo, the victim in the matter. The lawyer then called the defendant, Bowman, and requested a meeting at a restaurant in order to make it “all go away.” Bowman testified that they discussed getting his belongings back and dropping the prosecution for “cash.” Bowman did not agree to this, and the settlement was not finalized.

The lawyer then called attorney John Bruce Bowman, the brother of Bowman, and suggested to him that Bowman pay a “substantial” amount of money to avoid prosecution. Attorney Bowman told him that the suggestion was extortion and he would not be a part of it. Attorney Bowman later reviewed a settlement agreement that was negotiated between Bowman and the lawyer. He also stated that the lawyer never discussed a civil settlement or claim and that the telephone call was about “saving money with a criminal lawyer and getting money to resolve a criminal matter.”

The lawyer testified that the content of the proposed settlement agreement was in an e-mail he sent to Jeffrey Bowman and attorney Bowman; however, attorney Bowman apparently never received a copy of any e-mail because of a “faulty e-mail address”. The lawyer also did not have DePaolo’s medical bills at the time of the agreement, which later exceeded $3,000.00.

The lawyer tried to resolve the criminal case before a July 14, 2011 meeting between the Assistant State Attorney and DePaolo so that Bowman would not have to “spend money” on a criminal defense attorney. The lawyer testified that he was aware of the Bar rules prohibiting compensating people to drop criminal charges and that he did not call the Florida Bar Hotline during the preparation of the agreement.

The lawyer then prepared a settlement agreement in which DePaolo would sign an Intent Not to Prosecute and “in good faith make every effort to ensure that there is no prosecution.” The agreement also contained the following statement: “I, attorney Mark F. Germain, hereby acknowledge receipt of $1,500 from Jeffrey ALLEN BOWMAN on behalf of BONNIE DEPAOLO as compensation for the concessions made herein.” (emphasis supplied). The agreement was signed July 10, 2011, by both the lawyer and DePaolo; however, the lawyer never received the $1,500.00 from Jeffrey Bowman.

Soon after the agreement was signed, the lawyer called attorney James Hope, who was his supervising attorney for probation imposed in a previous Bar matter, regarding the agreement. “Mr. Hope dissuaded (the lawyer) from using the language in paragraph three, but (the lawyer) continued to press as to why he thought the language was appropriate. Mr. Hope told (the lawyer), ‘I wouldn’t touch that with a ten foot pole.’ (The lawyer) then admitted that the agreement was not a proposal, and that he had already signed it.”

The referee found that the lawyer did not competently in representing DePaolo, including the failure to obtain an injunction, which would have “greater enforceability and consequences for violation than a ‘no contact’ order from first appearance (an order prohibiting contact with Ms. DePaolo as a condition of pretrial release). He also waived her ability to seek personal injury damages, without knowing what those damages were, and then encouraged settlement for a sum of money far below the actual costs she incurred for medical treatment.”

The referee also found “(the lawyer) also discouraged the criminal prosecution of the ‘perpetrator’ in this case, which prosecution may have resulted in further protections and restitution for Ms. DePaolo. He attempted to negotiate a settlement which was beneficial to Jeffrey Bowman and detrimental to Bonnie DePaolo, and he attempted to extort funds from Jeffrey Bowman in exchange for a declination of prosecution. In addition to the harm this caused to Ms. DePaolo, Respondent ultimately interfered with the State’s prosecution of Jeffrey Bowman by negotiating terms encouraging Ms. DePaolo’s non-participation as a witness in the case.”

The referee also found that “(the lawyer) was misleading during the Bar’s investigation of this matter. For example, he prepared two affidavits for Ms. DePaolo, which were at best self-serving testimony, and were not accurate. During the hearing, Ms. DePaolo could not even read portions of the Affidavits, and it was clear that the contents were not her testimony. These affidavits were prepared at critical points in the disciplinary process. (The lawyer) also gave deposition testimony that was not accurate.”

After listing the Bar Rules that the lawyer violated, including 4-1.1, 4-1.7(a)(2), 4-3.4(b), 4-8.4(a), and 4-8.4(d), applying the Florida Standards for Imposing Lawyer Sanctions, mitigation and aggravation, and case law, the referee recommended that the lawyer be held in contempt of his probation and permanently disbarred. In a one page Order, the Florida Supreme Court upheld the referee’s findings and found the lawyer in contempt; however, the Court reduced the permanent disbarment to a 5 year disbarment.

Bottom line: This is a somewhat bizarre set of facts to say the least and, according to the referee’s report, the lawyer apparently knew that what he was doing was a violation of the Bar rules. He will now have 5 plus years to think about it.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog is not an advertisement and 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
http://www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Conflict of interest criminal cases, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer conflict of interest, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Florida Bar Professional Ethics Committee approves proposed advisory ethics opinion addressing the use of lawyer electronic signatures

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Proposed Advisory Opinion 87-11 (Reconsideration) which was approved by the Professional Ethics Committee of The Florida Bar on June 27, 2014. The proposed Advisory Opinion states that a lawyer may permit a non-lawyer employee to affix the lawyer’s electronic signature using the format in new Rule of Judicial Administration 2.515; however, opinion cautions that, although the lawyer may delegate the electronic signing of the document under the rule of judicial administration, the lawyer must “review and be responsible for the work product” as required by Rule 4-5.3(c).

The proposed advisory opinion is below.

PROFESSIONAL ETHICS OF THE FLORIDA BAR

Proposed Advisory Opinion 87-11 (Reconsideration) [June 27, 2014]

A Florida Bar member has asked the committee to reconsider Florida Ethics Opinion 87-11, in light of recent changes to Rule of Judicial Administration 2.515 regarding electronic signatures. In Florida Ethics Opinion 87-11, the committee opined that “an attorney should not under any circumstances permit nonlawyer employees to sign notices of hearing” citing the lawyer’s obligation to comply with rules of court and to avoid assisting in the unlicensed practice of law.

Since that opinion was written, the Supreme Court of Florida has required that all documents be filed electronically. In re Amendments to the Florida Rules of Civil Procedure et al., 102 So.3d 451 (Fla. 2012). Subsequent to that order, the Rules of Judicial Administration were amended to address electronic signatures. In re Amendments to the Florida Rules of Judicial Administration et al., 102 So.3d 505 (Fla. 2012). New Rule of Judicial Administration 2.515 states as follows:
(a) Attorney Signature. Every pleading and other document of a party represented by an attorney shall be signed by at least 1 attorney of record in that attorney’s individual name whose current record Florida Bar address, telephone number, including area code, primary e-mail address and secondary e-mail addresses, if any, and Florida Bar number shall be stated, and who shall be duly licensed to practice law in Florida or who shall have received permission to appear in the particular case as provided in rule 2.510. The attorney may be required by the court to give the address of, and to vouch for the attorney’s authority to represent, the party. Except when otherwise specifically provided by an applicable rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other document; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other document had not been served.

(b) Pro Se Litigant Signature. A party who is not represented by an attorney shall sign any pleading or other paper and state the party’s address and telephone number, including area code.

(c) Form of Signature.

(1) The signatures required on pleadings and documents by subdivisions (a) and (b) of this rule may be:

(A) original signatures;

(B) original signatures that have been reproduced by electronic means, such as on electronically transmitted documents or photocopied documents;

(C) electronic signatures using the “/s/,” “s/,” or “/s” formats by or at the direction of the person signing; or

(D) any other signature format authorized by general law, so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and documents with that signature format.

***
In light of the new rule of judicial administration, the committee is of the opinion regarding electronic signatures alone that a lawyer may permit a nonlawyer employee to affix the lawyer’s electronic signature using the format indicated by subdivision (c)(1)(C) above. The committee cautions that although the lawyer may delegate the electronic signing of the document under the rule of judicial administration, the lawyer must “review and be responsible for the work product” as required by Rule 4-5.3(c). Thus, lawyers may only direct a nonlawyer to affix the electronic signature permitted by the rule after reviewing and approving the document to be filed. The committee’s conclusion in Florida Ethics Opinion 87-11, that generally a nonlawyer may not sign pleadings, otherwise remains unchanged.
According to the Bar’s notice, comments from Florida Bar members are solicited on the proposed opinion and the committee will consider any comments received at a meeting to be held at 9:30 a.m. on Friday, October 17, at the Tampa Airport Marriott in conjunction with the Bar’s Fall Meeting. Comments must have the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why The Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street 32399-2300, and must be postmarked no later than 30 days from the date of this publication.

Bottom line: This proposed opinion revises the previous opinion addressing lawyer’s signatures to bring it into the brave new digital world since e-filing has now been made mandatory in Florida. As I have said (and blogged about) in the past, lawyers must be very wary of allowing non-lawyers to affix an electronic signature and e-file documents to insure that there are no breaches of confidentiality, whether it be client confidentiality or confidentiality under existing law.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog is not an advertisement and 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
http://www.jac-law.com

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