New York ethics opinion states that lawyers cannot reveal client confidences solely to respond to a former client’s criticism on a lawyer-rating website

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York State Bar Association ethics opinion which states that lawyers cannot reveal client confidences solely to respond to a former client’s criticism on a lawyer-rating website. The opinion is: New York State Bar Association Committee on Professional Ethics Opinion 1032 (10/30/2014) and the opinion is here: http://www.nysba.org/CustomTemplates/Content.aspx?id=52969.

A New York law firm sent a request for an opinion stating that it “believes that a ‘disgruntled’ former client has unfairly characterized the firm’s representation of the former client on a website that provides reviews of lawyers. A note posted by the former client said that the former client regretted the decision to retain the firm, and it asserted that the law firm provided inadequate services, communicated inadequately with the client, and did not achieve the client’s goals. The note said nothing about the merits of the underlying matter, and it did not refer to any particular communications with the law firm or any other confidential information. The former client has not filed or threatened a civil or disciplinary complaint or made any other application for civil or criminal relief.”

“The law firm disagrees with its erstwhile client’s depiction of its services and asserts that the firm achieved as good a result for the client as possible under the difficult circumstances presented. The firm wishes to respond to the former client’s criticism by telling its side of the story if it may do so consistently with its continuing duties to preserve a former client’s confidential information.”

The question posed was: “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”
The opinion discussed whether a lawyer “may rely on the ‘self-defense’ exception to the duty of confidentiality set forth in Rule 1.6, which as to former clients is incorporated by Rule 1.9(c). Rule 1.6(b)(5)(i) says that a lawyer ‘may reveal or use confidential information to the extent that the lawyer reasonably believes necessary … to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct’ to disclose the former client’s confidential information in responding to a negative web posting, even though there is no actual or threatened proceeding against the lawyer.”

The opinion found that the above exception does not apply and that “(a) lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.”

Bottom line: Lawyers be aware: according to this opinion, a lawyer may not include confidential information in responding to a negative posting by an ex-client (or current client for that matter) on a lawyer-rating website (or other third party website).

Be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, lawyer ethics opinions Groupon type marketing, Lawyer revealing client confidential information on internet, Lawyers and social media

Federal District judge finds that Florida Bar rules prohibiting past results as applied by the Bar violate First Amendment and enjoins enforcement

Hello everyone and welcome to this Ethics Alert which will discuss the recent (12/8/14) Federal Southern District Judge’s opinion which granted summary judgment against The Florida Bar and enjoined the Bar from enforcing its guidelines regarding past results in attorney advertising in indoor and outdoor display, television and radio media as a violation of the First Amendment. The order/injunction is in the case of Robert Rubenstein v. The Florida Bar, Case No. 14-CIV-20786-BLOOM/Valle (SD Fla. 12/8/14). The order is here: http://www.lawpracticeadvisor.com/wp-content/uploads/2014/12/Rubenstein-v.-Florida-Bar.pdf.

As background, a Florida lawyer filed a federal lawsuit in the Southern District of Florida against The Florida Bar challenging the constitutionality of the guidelines which prohibited his use of past results and subsequently filed a motion for summary judgment. In an Order/injunction dated December 8, 2014, Federal Southern District Judge Beth Bloom granted summary judgment in favor of the Florida lawyer and ruled that the Florida Bar rules prohibiting the use of past results in lawyer advertising as applied by the Bar’s guidelines were unconstitutional and violated the First Amendment of the U.S. Constitution.

According to the Order/injunction, “Relying on the newly amended (2013 Bar) Rules, Plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. (citation omitted). The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. (citation omitted)”

“Plaintiffs’ advertisements include, for example, a television segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting the words ‘COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each case.’ (citation omitted). Critically, the Bar’s notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against ‘false and misleading” attorney advertising. (citation omitted)’

The Bar’s Board of Governors approved guidelines related to past results in early 2014 and the Bar subsequently sent notice to the plaintiff/lawyer in this case (as well as other Florida lawyers) which stated that their previously approved advertisements were in violation of the advertising rules and required the advertisements to be removed from the media.

The Order/injunction states “The Bar has presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests its Rules were designed to promote. The burden here is the Bar’s, and it has failed to meet it”.

The Order concludes that “The Bar has failed to demonstrate that the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines advance a substantial governmental interest, or that the those restrictions are not more extensive than necessary to serve that interest.” “The Bar is ENJOINED from enforcing Rules 4-7.13 and 4-7.14 as restated in the Guidelines to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.”

In response to the federal District Judge’s order and injunction, the Bar’s Board of Governors has repealed the guidelines on using past results in indoor and outdoor display, radio, and television advertising; however, the Board has indicated that such advertisements must still be objectively verifiable and make no material omissions.

Bottom line: This is certainly a (preliminary) victory for the lawyer/plaintiff in this case with regard to the Bar’s guidelines for advertising past results and the application of the Bar rule and it is not known at this time whether the Bar will appeal the Summary Judgment Order. Stayed tuned…

…and be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising past results, Lawyer ethics, Lawyer Ethics and Professionalism

Louisiana discipline board opinion dismisses ethics charges against lawyer who submitted a fabricated videotape and obtained false testimony at trial

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Attorney Discipline Board opinion which dismissed ethics charges against lawyer who, inter alia, submitted a fabricated videotape and elicited false testimony at a criminal trial. The disciplinary matter is In re: Eric Anthony Wright, 13-DB-003 (12/4/14). The opinion is here: https://www.ladb.org/DR/handler.document.aspx?DocID=8323.

According to the disciplinary board’s opinion, “in 2008 (the lawyer) was retained to represent Ray Boudreaux who was charged with five counts of attempted second degree murder arising from a fight outside a French Quarter club on September 16, 2007 which resulted in at least five people being stabbed.” There was a surveillance videotape of the incident which was produced by the prosecution and admitted at the trial.

A defense investigator had obtained a videotape from the Myspace page of one of the victims made in January 2007 and involved some of the same participants as the September 2007 incident. The client/defendant told the lawyer that he had expertise in digital data transfer techniques and the lawyer told him to prepare the Myspace footage for presentation at the trial. The defendant then made a videotape from the Myspace footage. The lawyer produced the Myspace videotape at the trial and, over the prosecutor’s objection, the judge allowed him to show the fabricated videotape to the jury. The lawyer also put a witness on the stand who falsely testified that the videotape showed the September 2007 incident.

“In response, the state produced a rebuttal witness, Ashley Barriente, who brought a cell phone containing the original footage from the January 2007 fight to the courtroom and showed the original video to the court, the lawyers and jury. She testified that her sister had taken the footage on her (Barriente) cell phone in the French Quarter on January 13, 2007 – nine months before the incident at issue took place.”

“In his sworn statement to (the office of disciplinary counsel), convened after a complaint was filed against him alleging his complicity in suborning perjury and foisting knowingly false physical evidence on the court and the jury, the Respondent insisted that once he learned that the defense video No. 2 was a fabrication, he repudiated the film by deliberately refusing to offer it into evidence. Ultimately, he made no effort whatever to correct the record by acknowledging the false and misleading nature of the proffered video. To the contrary, during closing argument the respondent repeatedly and emphatically insisted that video No. 2 was an authentic depiction of the September 2007 fight to both the court and the jury, going so far as to pointedly attack the credibility of the video’s author, Ms. Barriente, as ‘un-credible’ in his argument to the jury.”

After a disciplinary hearing, the committee made factual findings that the disciplinary counsel’s witness who had testified at trial and identified the videotape was not credible and that the complainant/defendant had refused to testify and invoked his Fifth Amendment rights, which caused the disciplinary counsel to “abandon allegations related to the lawyer’s alleged knowledge and participation in the preparation of the video because of the lack of admissible evidence to support those allegations.”

The hearing committee made further findings of fact that the lawyer did not review the underlying three year old trial transcript in advance of his sworn statement in the disciplinary matter and that he had made misstatements about the events in both his sworn statement and in his response to the charges. The committee stated that the lawyer had “reason to suspect” that the evidence was false; however, he followed his client’s wish to use it.

Notwithstanding the above, the committee found that, although the lawyer had offered inconsistent statements, disciplinary counsel had failed to prove by clear and convincing evidence that the lawyer offered false evidence to the court, made a false statement of fact to the court, or failed to take reasonable measures “when faced with doubt about the authenticity of the evidence presented to the trial court”. Pursuant to same, the committee declined to find that the lawyer violated any Bar Rules and the disciplinary board deferred to the hearing committee’s credibility determinations and dismissed the disciplinary charges.

Bottom line: This is a very unusual disciplinary case on several levels. First, notwithstanding the fact that the lawyer admitted that he used a false videotape and elicited false testimony and had “reason to suspect” that the evidence was false and “made no effort whatever to correct the record by acknowledging the false and misleading nature of the proffered video”, these very serious allegations were dismissed. Second, although the committee found that the lawyer had offered inconsistent stories, it declined to find that he made false statements during the disciplinary investigation.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 dismissal of Bar complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Illinois Hearing Review Board Report recommends 3 year suspension for lawyer who allegedly took $95,000.00 from his retired secretary

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Hearing Review Board Report which recommended a 3 year suspension for a lawyer who allegedly who allegedly took $95,000.00 from his retired secretary for his own personal use. The disciplinary matter is In re: Charles William Helmig, Commission No. 2013PR00019 (Ill. 11/25/14). The Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11553.

According to the Report and Recommendation, the secretary worked for the lawyer from 1964 until 1984 when she retired. She never married and had few close relatives. In 2005, the former secretary was at least 83 years old and had been hospitalized. Eventually both of her legs were amputated, her condition deteriorated, and by 2009 she was not mentally competent. From 2005 until her death in March 2013, the secretary was either in the hospital or a nursing home.

While she was in the hospital in 2005, the former secretary asked the lawyer to prepare a Power of Attorney for Healthcare and a Power of Attorney for Property for her. There was a stipulation that the secretary was competent when she signed the documents; however, the lawyer testified he was concerned about her abilities at that time and he read and explained the documents to her before she signed them.

The lawyer then began to manage the former secretary’s business affairs and collected her assets and sold her home. The lawyer admitted that he charged the secretary over $27,000.00 in “legal fees” from 2005 through 2013. He also admitted that, beginning in 2009 and through 2012, the secretary was not mentally competent and was unable to recognize him. During that time, the lawyer took over $95,000.00 from the secretary’s assets and used the funds for his own personal and business expenses. He admitted that he did not ask have the secretary’s permission to take the money (nor did he ask for it) and that she was not competent to give her consent.

The lawyer also failed to timely pay the nursing home where the former secretary was living, which resulted in the nursing home involuntarily transferring her. In addition, acting as the secretary’s lawyer, he failed to appear at a status conference and failed to comply with an agreed order entered in the matter.

The lawyer stated that he was in a “very bad financial condition” when he took the money and that he had defaulted on loans of more than $1.2 million dollars and had federal tax liens for several hundred thousand dollars. The lawyer claimed the $95,000.00 were loans and provided, for the first time at his sworn statement, a series of promissory notes that the Hearing Board did not believe were executed at the time of the “loans”.

According to the Report and Recommendation, “(a) lesser sanction than disbarment was appropriate. While the lawyer’s conduct could support a sanction of disbarment, we agree with the Hearing Board’s recommendation that the lawyer’s misconduct warrants a three year suspension. However, we recommend that the suspension continue until further order of the Court. The lawyer’s failure to fully understand the impropriety of his acts, as evidenced by his continued insistence that the takings were loans and his poor financial condition, support the necessity of a future assessment before he resumes the practice of law.”

Bottom line: The Report and Recommendation found that this lawyer took over $95,000.00 from his retired secretary and paid his own personal and business expenses without her permission when she was not competent to give her consent. He also apparently provided fabricated promissory notes at his sworn statement to justify his actions. He failed to pay the nursing home which resulted in her involuntary transfer, failed to appear at a hearing on her behalf, and failed to comply with an agreed Order. Under these facts, it is very surprising that the discipline recommendation was not disbarment. The disciplinary matter and this Board’s recommendation will now be reviewed by the Illinois Supreme Court. We will see what that court decides.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of diligence, Lawyer misappropriation, Lawyer misappropriation of trust funds, Lawyer misrepresentation, Lawyer sanctions

Illinois Hearing Board recommends 3 year suspension for lawyer who allegedly made false statements in blog posts on probate matters

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Hearing Board Report and Recommendation which recommended a 3 year suspension for a lawyer who allegedly made false statements on a blog concerning the integrity of the judges, knowing they were false or with reckless disregard for their truth or falsity, and engaged in dishonest conduct and conduct prejudicial to the administration of justice. The disciplinary opinion is In re JoAnne Marie Denison, Commission No. 2013PR00001 (11/21/14). The opinion here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11550.

The lawyer was licensed to practice law in Illinois 1986 and has no prior discipline. According to the Report, a one count Complaint was filed against the lawyer on January 8, 2013 charging her with misconduct based on statements she made on a blog regarding judges, lawyers and other persons involved in an adult guardianship proceeding (Sykes). Beginning in November 2011, the lawyer wrote and was responsible for an Internet blog (or blogs).

Some of the lawyer’s blogs alleged that there was corruption in the probate court in general and in the Sykes case in particular. The lawyer testified she produced the blog as a private person and not as a lawyer although her knowledge and skill as an attorney was required to post and author the blogs. She stated that she published the blog primarily from a legal standpoint and her blog had an audience of about 40,000 at the time of the hearing.

The Report further states: “The blog includes allegations of wrongdoing by specific individuals involved in the Sykes case. These allegations are summarized in a “Table of Torts.” While those persons are referenced by initials, the Table identifies the persons to whom the initials refer. (The lawyer) prepared the Table of Torts. Because (the lawyer) periodically added material to the Table of Torts, more than one version is in evidence. (The lawyer) acknowledged the exhibits fairly represent snapshots of the Table of Torts.” (citations omitted).

“On the blog, (the lawyer) described the Table of Torts as ‘TEN PAGES of questionable behavior, corruption, misfeasance, malfeasance, perpetration of misdemeanors and felonies,’ occurring in the Sykes case, and as a ‘Summary of the Case! – 90%+ of the wrongful conduct all in one convenient place.’” (citations omitted). “While (the lawyer) acted with reckless disregard for the truth of her accusations, based on our impressions of (the lawyer), we do not believe she was acting out of a deliberate purpose of harming the judges and attorneys involved. (The lawyer) genuinely, though unreasonably, believed something was wrong with the proceedings in the Sykes case. (The lawyer) knew Mary and Gloria before the guardianship.”

“While (the lawyer) used decidedly misguided means, we believe she was acting out of a sincere desire to help Mary. We were also convinced (the lawyer) truly believes there are abuses in the probate system and the system needs to be changed, to protect persons who are the subject of adult guardianship proceedings. From our perspective, it appears (the lawyer) has genuine concern for senior citizens and perceives the senior population as vulnerable, especially to financial exploitation. This concern, as a general matter, is a legitimate one, even though (the lawyer) had no reasonable basis for believing the judges or attorneys in Mary’s case were corrupt. We do not believe (the lawyer) acted with a self-serving motive. The evidence did not support a theory that (the lawyer) was reaping a significant financial benefit from her activities including operation of the blog.”

The (Bar) Administrator argued for disbarment and the lawyer argued that no discipline should be imposed. The Report found that the lawyer made had false statements concerning the integrity of the judges, knowing they were false or with reckless disregard for their truth or falsity, and engaged in dishonest conduct and conduct prejudicial to the administration of justice. The Report also found that there was no clear and convincing evidence that the lawyer presented or threatened to present criminal charges, in order to obtain an advantage in a civil matter.

According to the Report, “(the lawyer) engaged in serious misconduct. On an internet blog which she published, (the lawyer) made numerous posts, over time, in which she impugned the integrity of judges and other attorneys, falsely and without any reasonable basis for believing her statements were true. Such misconduct is quite serious, given the potential it carries to damage the public’s perception of the court system.” After considering mitigation and aggravation as well as prior Illinois Supreme Court cases, the Report recommended a 3 year suspension which will require the lawyer to apply to the Court for reinstatement.

Bottom line: This case involves important issues related to the interplay between the First Amendment of the U.S. Constitution and alleged lawyer misconduct/discipline. The lawyer allegedly engaged in misconduct in blog posts alleging corruption in the Illinois court system. Although the Report found that the lawyer was “acting out of a sincere desire to help (Sykes)”, she did not act with a “a self-serving motive”, and she did not receive a “a significant financial benefit”, the Board recommended a very significant 3 year suspension requiring reinstatement. It will be interesting to see what the Illinois Supreme Court decides…stay tuned.

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 dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer impugning qualifications or integrity of judge, Lawyer sanctions

Indiana Supreme Court imposes public reprimand on lawyer who required non-compete provision in associate’s employment agreement

Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion which imposed a public reprimand on lawyer who required an associate to agree to a non-compete provision in an employment agreement and sent letters to the associate’s clients stating that he would be taking over the representation; however, he did not attempt to enforce the provision. The disciplinary opinion is In the Matter of: J. Frank Hanley II, Case No. 49S00-1410-DI-616 (Ind. SC 11/6/14). The opinion here: http://www.in.gov/judiciary/files/order-discipline-2014-49s00-1410-di-616.pdf

According to the opinion, the lawyer’s law practice was primarily in social security disability law. He hired an associate in 2006 to work in his law office pursuant to an employment agreement which included a non-compete provision prohibiting the associate from practicing Social Security disability law for two years if his employment was terminated.

The lawyer terminated the associate in 2013 and sent letters to the clients whose matters the associate was handling advising the clients that the associate was no longer working at the firm and that he would be taking over their representation. The lawyer also enclosed Appointment of Representative forms for the clients to complete to permit him to replace the associate as the clients’ representative before the Social Security Administration.

Notwithstanding the letters, the associate continued to practice social security disability law after leaving the law firm, and at least two of the associate’s existing clients chose to keep him as their lawyer. The lawyer did not attempt to enforce the non-compete provision and, after the Bar complaints were filed against him, the lawyer provided the associate with the client files.

Bottom line: This lawyer violated Indiana Bar Rule 5.6(a) by requiring the associate to agree to limit his practice after he was no longer with the firm as a condition of his employment agreement. This type of agreement limiting a lawyer’s practice is prohibited in most, if not all states and other jurisdictions.

Florida Bar Rule 4-5.6(a) states:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement…

Lawyers should be aware of this Bar rule when hiring associates and should not include a non-compete clause.

Disclaimer: this e-mail 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 lack of communication with client, Lawyer Professionalism, Lawyer requiring non-compete restrictive clause in employment agreement, lawyer restricting right to practice, Lawyer sanctions

Pennsylvania lawyer receives 2 year stayed suspension for neglecting cases and paying sanctions with firm funds without telling firm or client

Hello everyone and welcome to this Ethics Alert which will discuss the recent Pennsylvania Supreme Court opinion which imposed an agreed 2 year stayed suspension with probation for a lawyer who neglected client cases over two years, had monetary sanctions imposed on him and paid the sanctions out of firm operating funds without telling his partner or the client, and deceiving client by claiming that his billings were for legal services and not sanctions. The disciplinary opinion is Office of Disciplinary Counsel v. Christopher Roulhac Booth, Jr., No. 106 DB 2013 (Pa. SC 11/13/14) and the opinion and disciplinary board report are online here: http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/106DB2013-Booth.pdf

According to the opinion and consent agreement, the lawyer neglected cases for over 2 years, had $65,000.00 in monetary sanctions imposed on him and paid the sanctions out of firm accounts without telling his partner or the client. The lawyer had concealed his conduct from his partner and the client, Wachovia Bank. After Wachovia learned of the defaults and sanctions they terminated the firm and hired other counsel.

The lawyer also took additional funds from the law firm’s operating account. According to the consent agreement “(d)uring his tenure with (the law firm), Respondent dispersed, or caused to be dispersed, monies from the firm’s operating account in an amount in excess of $117,000, which disbursements he concealed from the firm and which were in excess of the fees and profits of the partnership to which he would have been entitled under the partnership agreement. Respondent has repaid the firm the amount of $40,000 and has arranged for the repayment of the remainder of the funds by relinquishing fees that were due to Respondent.”

The consent agreement states: “the instant matter does not involve the misappropriation of client funds; rather it involves the ‘misdirection’ of operating funds and subsequent misrepresentation to Respondent’s partner of the true purpose of the use of the operating funds, which was to satisfy sanctions orders resulting from Respondent’s neglect. Furthermore, Respondent attempted to deceive the client, Wachovia, into believing that Respondent’s billings were for services rendered rather than for services and sanctions.”

The consent agreement stated as mitigation that the lawyer had self-reported the misconduct and suffers from depression and in aggravation, that the lawyer had served as a member of a Pennsylvania disciplinary hearing committee.

Bottom line: This lawyer was found to have neglected cases over 2 years, had monetary sanctions imposed upon him and paid the $65,000.00 in sanctions out of his law firm’s operating account without telling his partner or the client and making false statements to the client, and improperly taking an additional $117,000.00 from the firm’s operating account. In other states, including Florida, this lawyer may or would have received a much more severe sanction, including potentially disbarment.

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer lack of diligence, Lawyer misrepresentation, Lawyer misrepresentations to law firm re billings, Lawyer Professionalism, Lawyer sanctions