Louisiana Supreme Court refuses to sanction a lawyer who claimed a non-existent specialization on a law firm website because of a lack of a “culpable state of mind”

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary case wherein the court refused to sanction a lawyer who claimed a non-existent specialization on his former law firm website because he did not have a “culpable state of mind” and the public was not harmed. The opinion is In re: Kearney Soniat Du Fossat Loughlin, Supreme Court of Louisiana Case No. 14-B-0923 (September 26, 2014) and is online here: http://www.lasc.org/opinions/2014/14B0923.pc.pdf.

According to the opinion, the lawyer created a website in 2007 to promote his law firm. The home page and the firm profile page had the following statement: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.” In 2009, the lawyer requested that the website be taken down for revisions because his wife, with whom he had been practicing, left the private practice of law.

In October 2011, during an investigation of an unrelated matter, the Louisiana Office of Disciplinary Counsel (“ODC”) accessed the firm profile page of the lawyer’s former website through a web search. After an investigation, a one count formal charge was filed against the lawyer, alleging violations of the Louisiana advertising rules by claiming that he “specialized” in maritime personal injury and death cases, even though that specialization was not recognized and/or approved by the Louisiana Board of Legal Specialization.

The lawyer denied the allegations and, after a hearing, the disciplinary hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases and recommended a reprimand and that the lawyer attend an advertising continuing education course, notwithstanding the fact that such specialization did not exist in Louisiana. The Louisiana disciplinary board approved the findings and recommendation of the committee.

The Court’s opinion reversed the recommended reprimand and imposed no sanction: “The record establishes respondent’s actions were not taken with a culpable mental state. It is also undisputed his actions caused no harm to the public. Considering these factors, we do not find respondent’s actions rise to the level of sanctionable misconduct. Therefore, we will dismiss the formal charges against respondent.”

Bottom line: This opinion clearly seems to indicate that, at least in Louisiana, the Bar must show that a lawyer had a “culpable state of mind” (not mere negligence) to prove a violation of the Bar Rule prohibiting a lawyer’s claim of specialization on a website; however, the fact that Louisiana has no specialization in “maritime personal injury and death cases “ could very well have been an important factor in this decision.

Let’s 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
http://www.jac-law.com

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Florida Supreme Court issues in person public reprimand to lawyer suspended for 2 years for “appalling and unprofessional behavior”

Hello everyone and welcome to this Ethics Alert blog which will update Supreme Court of Florida disciplinary opinion which increased a referee’s recommended 90 day suspension to 2 years for “appalling and unprofessional behavior” including, inter alia, “screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him.” The opinion is The Florida Bar v. Norkin, No. SC11-1356 (October 31, 2013) and is online here: http://www.floridasupremecourt.org/decisions/2013/sc11-1356.pdf.

The Florida Bar filed a formal Complaint against the lawyer alleging that on numerous occasions, he behaved “in an unprofessional and antagonistic manner during the course of litigating a civil case.” The lawyer was representing the defendants in a lawsuit filed in Miami-Dade County which originated from a dispute between business partners. According to the opinion, the lawyer was “initially” cordial in his interactions with opposing counsel; “(h)owever, one month later, in August 2008, (the lawyer’s) demeanor changed and he became combative. Based upon (the lawyer’s) unprofessional behavior towards the presiding judges, a senior judge was appointed to serve as a court appointed provisional director of the corporation, and opposing counsel…”

The initial senior presiding judge was later replaced by a second senior judge. As one of multiple examples of the lawyer’s disruptive behavior, the opinion quoted an exchange between the lawyer and the second presiding judge: “During a hearing on April 17, 2009, (the judge) commented, ‘I am finding these hearings with you extremely difficult. You talk very loud. I am telling you at every hearing. You are very angry, you make me angry. I don’t like angry lawyers. There is no point in it.’

Later in the same hearing, (the judge) commented, ‘I have told you three times already. I’m telling you, I am different than the last judge and so you are going to modify your behavior when you come in here. I am a low volume, low key guy until I get pissed off. You know what pisses me off? People coming in here and raising their voices at me.”

In another example from the opinion: “At a hearing on December 22, 2009, (the judge) remarked, ‘You come in like a bull in a china shop. You do it every time. I don’t know if you are trying to piss me off or what but you do it.’ In the same hearing, (the judge) commented, ‘I remember you coming in here and screaming the way you are doing consistently….You’re the one that raised your voice.’

The lawyer “argued (to the referee) that his voice is naturally loud, he speaks loudly when he feels he is not being heard, and he is working with a behavioral therapist to correct his behavior. The referee rejected the lawyer’s explanation about the volume of his voice as “patently unbelievable” and found that his behavior was “calculated” and that when the lawyer “felt he was not winning during a particular hearing, he would raise his voice and behave in an angry, disrespectful manner.” The referee recommended that the lawyer be suspended for 90 days.

The opinion affirmed the referee’s factual findings and that the lawyer “engaged in numerous acts of misconduct by behaving in an unprofessional and antagonistic manner during the course of a civil case”; however, it rejected the referee’s recommended 90 day suspension, stating that “(t)here are proper types of behavior and methods to use when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional without being obnoxious.” The opinion imposed a 2 year suspension on the lawyer and ordered him to personally appear before the Court for a public reprimand.

Bottom line: As I stated on my November 4, 2014 blog, which is here: http://jcorsmeier.wordpress.com/2013/11/04/florida-supreme-court-suspends-lawyer-for-2-years-for-appalling-and-unprofessional-behavior-including-screaming-at-judges-and-opposing-counsel/, this disciplinary case is another example of the Florida Supreme Court increasing the recommended discipline of a referee. A footnote to the opinion states that: “Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior.”

As an update, the lawyer appeared before the Florida Supreme Court on February 6, 2014 for the reprimand, which was read by then Chief Justice Ricky Polston and is online here: http://www.wfsu.org/gavel2gavel/viewcase.php?eid=2129. The lawyer appears to smile during the reprimand and to shake his head from side to side when Justice Polston describes the misconduct. You can watch the video and decide for yourself whether the reprimand and 2 year suspension had the effect on the lawyer that the Court desired.

Let’s be careful out there.

Disclaimer: this 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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New Jersey lawyer receives three month suspension for “sarcastic and sophomoric” e-mails and statements to opposing counsel and false statements to judge

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New Jersey Supreme Court opinion which suspended a lawyer for 3 months for making outrageous sarcastic and sophomoric statements and e-mails to opposing counsel and making false statements to a judge. The disciplinary opinion is: In the Matter of Jared E. Stolz, Docket No. DRB 13-331 (September 4, 2014) and the opinion is here: http://www.judiciary.state.nj.us/drb/decisions/Stolz_13_331.pdf

According to the opinion, the lawyer admitted making the inappropriate comments in e-mails and a fax, but claimed that his misstatements to the judge were due to his busy schedule which included vacations to the Dominican Republic and Ireland, where he played golf with his father. The Bar Complaint referred to and quoted e-mails and a facsimile that the lawyer sent to opposing counsel in 2009 and 2010 as follows:

“Don’t feel you have to email me daily and let me know just how smart you are.”

“Did you get beat up in school a lot? Because you whine like a little girl.”

“Why don’t you grow a pair?”

“This will acknowledge receipt of your numerous Emails, faxes and letters…. In response thereto, Bla Bla Bla Bla Bla Bla.”

The Bar Complaint also alleged that, after a motion hearing December 2010, the lawyer and opposing counsel had physical contact. Opposing counsel told the lawyer not to touch him and the lawyer replied: “Why would I want to touch a fag like you?”

At a hearing on the disciplinary matter, the lawyer apologized for the statements and e-mails to opposing counsel. “It was not considerate…I have no explanation. I should be disciplined for it.” He called the statements “inexcusable, undignified and “venomous”; however, he denied that he lied to a judge when he said he never received certifications supporting a requested court order. He acknowledged at the hearing that he had received the certifications but said he had not seen them at the time that he made the misstatement because he was frequently out of the office during the period in question and he had to respond to 10 to 15 motions in one day.

According to the lawyer’s testimony:

“I neglected my files, I played too much golf, I went to Punta Cana with my family all within two months. Was it wrong? I don’t know. This is the lifestyle that I’ve chosen, the practice I’ve chosen because I worked at Methfessel & Werbel for 15 years in a cubical [sic] rising to managing director. I didn’t want that anymore. I want to play golf. I do insurance work. I missed it. I screwed up. I had no motivation to lie to the judge about this particular thing.”

“Should I have done things differently? Absolutely. Did I learn a lesson about this? Absolutely. After this, and I got that I now have hired two other attorneys, they review things, I review everything that comes in. Am I going to get lazy again and play more golf? I hope so. But I certainly did not intentionally lie.”

The NJ District Ethics Committee reviewed the matter and found that the lawyer did not make any intentional misrepresentations but that he may have been sloppy and recommended an admonition. The Review Board recommended a three-month suspension. The New Jersey Supreme Court agreed with the Review Board and suspended the lawyer for three months.

According to the opinion: “The sarcastic and sophomoric comments made in the emails and fax set forth in count one demonstrated a failure to treat (opposing counsel) with ‘courtesy and consideration.’” “The wildly inappropriate – indeed, discriminatory – comments (calling opposing counsel a ‘fag’) … also demonstrated a lack of courtesy and consideration.” “Although it may be true, as the DEC observed, that respondent had no reason to lie about the non-receipt of the certifications, his actions were so contrary to what a reasonable attorney would have done, if confronted with the same situation, that his story cannot be believed.”

Bottom line: Lawyers beware: If you are going to “get lazy and play golf”, try to avoid being negligent, making “misstatements” to a judge, making excuses, and making “sophomoric and sarcastic” statements to opposing counsel, especially if you have been practicing for almost 24 years.

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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Ethics Alert – Iowa Supreme Court reprimands lawyer who billed corporate client for costs of sanctions which “resulted from his own lack of diligence and communication”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Iowa Supreme Court opinion which adopted a disciplinary report and imposed a reprimand on a lawyer who billed his corporate client for costs of attorney’s fee sanctions which “resulted from his own lack of diligence and communication”. The disciplinary opinion is: Iowa Supreme Court Attorney Discipline Board v. Cameron Davidson, Case No. 14-0878 (August 18, 2014). The disciplinary opinion is online here: http://www.abajournal.com/images/main_images/Davidson.pdf and here: https://www.iacourtcommissions.org/ViewLawyer.do?id=2704

According to the court opinion and discipline report, the lawyer represented Deere & Co. as a defendant in defending an employment discrimination lawsuit filed in federal court. The plaintiff was a former Deere employee who was terminated for allegedly violating Deere’s employee travel expense policy; however, she claimed that the termination was a result of age discrimination.

The lawyer responded to the plaintiff’s interrogatories and request for production requesting the names of all Deere employees who were investigated during the same time period (2005-2012) for travel expense violations and identified 4 employees; however, he did not provide the requested birth dates. The plaintiff’s lawyer filed a motion to compel which was granted and attorney’s fees sanctions of $700.00 were imposed. The lawyer ultimately self-reported and stated that the client had informed him it wanted to object to the plaintiff’s discovery requests, which resulted in the initial discovery dispute and the $700.00 sanction. The lawyer stated “I believed that I had discussed this matter with my client, however, my file does not reflect that I sent the motion (to compel and for sanctions) or the order to the client.”

The plaintiff filed a second motion to compel and for sanctions on another discovery issue. The lawyer stated that he was unsure how to respond to the second motion and admitted that he “ultimately missed the deadline to file a resistance or a reply.” The court granted the second Motion to Compel and imposed a sanction of $1,750.00 in attorney’s fees. “I again failed to send the motion or the court’s order to the client, which was not aware of the seriousness of the discovery dispute.”

The plaintiff filed a third motion to compel and for sanctions, which was also granted and sanctions of $1,050.00 in attorney’s fees were imposed. The lawyer also failed to send the plaintiff’s third motion and the court order imposing sanctions to the client. According to the report: “Despite these Orders (the lawyer) continued to delay providing complete interrogatory answers (and) failed to arrange for two of the employees to be deposed, as requested by the plaintiff.”

The lawyer billed the client for the costs of all three sanctions. In the billings, the lawyer called the first $700.00 sanction “Miscellaneous; Penalty on Discovery; Doug Stephens Law Firm”, the billing for the second $1,750.00 sanction “Misc(ellaneous Costs)”, and the billing for the third $1,050.00 sanction “Miscellaneous; Attorneys’ Fees; B. Douglas Stephens.” According to the disciplinary report, “(o)nly after your former partners learned of the sanctions orders was the client fully informed.”

The lawyer was found to have violated Iowa disciplinary rules related to lack of communication, lack of diligence, and charging an unreasonable fee or expense and was reprimanded.

Bottom line: This lawyer was found to be negligent in timely responding to discovery related matters, which resulted in three separate attorney’s fee sanctions and, not only did he fail to tell the client about the negligence and the sanctions which resulted from his negligence, but he also had the audacity to bill the client for the costs of the sanctions. That certainly was not a good decision and it is somewhat surprising that the lawyer only received a reprimand.

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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Kentucky Supreme Court upholds ethics opinion finding that a waiver of ineffective assistance claims as part of criminal plea bargain violates ethics lawyer rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Kentucky Supreme Court opinion which upheld an ethics opinion stating that waiver of ineffective assistance claims as part of plea bargain violates lawyer ethics rules. The opinion is: United States of America v. Kentucky Bar Association, Case No. 2013-SC-000270-KB (August 21, 2014) and is at: http://opinions.kycourts.net/sc/2013-SC-000270-KB.pdf

The U.S. Attorney for both the Eastern and Western Districts of Kentucky requested that the Kentucky Supreme Court review Kentucky Bar Association Ethics Opinion E-435, which opined that the use of ineffective assistance of counsel waivers in plea agreements violated the Kentucky Rules of Professional Conduct. The ethics opinion stated that the use of the waivers in plea bargain agreements creates a non-waivable conflict of interest between the defendant and his attorney, limits the attorney’s liability for malpractice, and causes defense counsel to violate the ethics rules.

According to the Kentucky Supreme Court opinion, “(u)nder our ethical rules, ‘(i)t is professional misconduct for a lawyer to:…knowingly assist or induce another (attorney) to” “violate or attempt to violate the Rules of Professional Conduct…. Providing context to the language, knowing is defined as ‘(h)aving or showing awareness or understanding’…and induce is roughly defined as to ‘influence or persuade…’ Prosecutors offering plea agreements with IAC waivers surely violate this rule.”

“Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such. The plea agreement often comes with a take-it-or leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform unethically in order to comply with other ethical or constitutional obligations would not be “influencing or persuading” a fellow attorney to violate our ethical rules. Contrary to the United States’ assertion, it is not necessary that the prosecutor know defense counsel has been ineffective in order to satisfy the rule. Instead, the plain language of the rule indicates that what is required is for a prosecutor to understand his conduct will result in a fellow attorney violating our ethical rules.”

“(Ethics Opinion) E-435 additionally found the United States plea-bargaining practice violated -3.8 of our ethical rules. As a result of their weighty role in our justice system, -3.8 places special responsibilities on prosecutors. E-435 holds the insertion of IAC waivers in plea agreements violates the “spirit” of -3.8 and prosecutors disregard their role as a “minister of justice” when using such waivers. In truth, prosecutors are expected to be more than “simply…an advocate.” Demanding a defendant waive a potential IAC claim—or, worse, all collateral attack—may provide finality but at too high of a cost. A defendant’s conviction is essentially unappealable as a result of the waiver in question. A prosecutor is charged with “see(ing) that the defendant is accorded procedural justice,” and we simply do not believe the use of IAC waivers lives up to that lofty expectation. Accordingly, we affirm E-435 with respect to prosecutors.”

“We are duty-bound to regulate the legal profession within our borders. Today, we are proactive in that role. Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules. Accordingly, either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including (ineffective assistance of counsel), violates our Rules of Professional Conduct.

Bottom line: This Kentucky Supreme Court opinion confirms that waiver of ineffective assistance claims as part of plea bargain violates Kentucky lawyer ethics rules. Florida Bar Ethics Advisory Opinion 12-1 (2012) reached the same conclusion and also opined that a “prosecutor may not make an offer that requires the defendant to expressly waive ineffective assistance of counsel and prosecutorial misconduct because the offer creates a conflict of interest for defense counsel and is prejudicial to the administration of justice.”

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 Ethics, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Prosecutorial misconduct ethics

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