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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Florida Supreme Court increases suspension of former prosecutor to 2 years for extensive texting and calls with circuit judge presiding over prosecutor’s murder trial

Hello everyone and welcome to this Ethics Alert blog which will discuss the June 2013 Florida Supreme Court opinion suspending a lawyer and former prosecutor for extensive texting with a presiding judge who was the judge in the prosecutor’s first degree murder trial. The opinion is The Florida Bar v. Scheinberg, SC11-1865 (Fla. Supreme Court June 20, 2013) and the Supreme Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2013/sc11-1865.pdf. This is a follow up to my recent blog discussing the case of The Florida Bar v. Ana I. Gardiner, SC11-2311 (Fla. Supreme Court June 5, 2014) where the Court disbarred the former circuit judge on the same facts. That case is at: http://www.floridasupremecourt.org/decisions/2014/sc11-2311.pdf.

According to the opinion, in 2007, the lawyer was the lead prosecutor in State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder over which former Circuit Judge Ana Gardiner was presiding. On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first degree murder and on May 20, 2007, the jury recommended the death penalty. On August 24, 2007, the former judge imposed the death penalty.

Between March 23, 2007 (four days before the jury returned its guilty verdict in Loureiro) and August 24, 2007 (the day that the former judge imposed the death penalty), the lawyer/former prosecutor and the former judge “engaged in substantial personal communications by phone or text message. Specifically, lawyer/former prosecutor admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages during that period which the lawyer/former prosecutor did not disclose to the lawyer representing Loureiro.”

Following Loureiro’s conviction and sentence, his attorneys filed a direct appeal. When the communications between lawyer/former prosecutor and the former judge were discovered, the Broward State Attorney’s office agreed to a new trial in the case. The referee found that “(t)he undisclosed conduct between former Judge Ana Gardiner and the (lawyer/former prosecutor) contributed to the decision by the State of Florida, through its Broward State Attorney to agree to a new trial in State of Florida v. Omar Loureiro to dispel any public misconception that there was any denial of due process.”

The referee’s report recommended that lawyer/former prosecutor be found guilty of violating Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) and that “(t)he undisclosed communications between the judge and the (lawyer/former prosecutor) prejudiced the system. The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice.”

The referee also found three aggravating factors, including a pattern of misconduct; multiple offenses; and substantial experience in the practice of law as well as four mitigating factors, absence of a prior disciplinary record; full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings; good character or reputation; and remorse. The referee recommended that lawyer/former prosecutor receive a one year suspension from the practice of law and pay the Bar’s costs of $3,881.96. The lawyer filed a petition for review of the referee’s recommendations.

The opinion further stated:

(e)ven in the absence of evidence that a romantic relationship with an attorney practicing in a judge’s court has influenced the judge’s judgment, the judge’s authority necessarily suffers. First, the intimate relationship itself is contrary to the judge’s role of maintaining detached neutrality as to the litigants and lawyers who appear in his or her courtroom. Second, in continuing to preside over cases in which the lawyer appears during the relationship, the judge necessarily depletes the single most important source of his or her authority—the perception of the legal community and public that the judge is absolutely impartial in deciding cases.

* * *

(T)here is little case law from this Court that addresses the situation presented in this case, where an attorney engages in extensive personal communications with a presiding judge in a capital case, without disclosing those communications to the opposing party. The Report of Referee cites Florida Bar v. Mason, 334 So. 2d 1 (Fla. 1976), in which the Court suspended an attorney for one year for egregious ex parte communications with Justices of the Florida Supreme Court concerning a pending case. In Mason, the Court noted that the ex parte communications at issue were ‘fundamentally wrong,’ and that ‘there can be no temporizing with an offense the commission of which serves to destruct the judicial process.’

Here, there is no dispute that the communications between Scheinberg and former Judge Gardiner did not concern the Loureiro case. Nonetheless, we do find guidance in Mason, in that Scheinberg’s conduct similarly created an appearance of impropriety and caused harm to the judicial process. Scheinberg and Gardiner engaged in a substantial number of personal communications that were not disclosed to the opposing party and his attorney. Moreover, this conduct occurred in the context of a capital first-degree murder case where the judge had to rule on motions made by and against the respondent and where the judge could, and did, impose the ultimate sentence of death. The communications between Scheinberg and former Judge Gardiner led to an investigation and, ultimately, caused the Loureiro case to be retried, a process which consumed court resources, as well as the resources of opposing counsel. Given the seriousness of Scheinberg’s misconduct and the harm it caused to the administration of justice in the Loureiro case, together with the aggravating and mitigating factors found by the referee, we hold that a two-year suspension is the appropriate discipline. Thus, we disapprove the referee’s recommended sanction, and instead suspend Scheinberg for two years.

Bottom line: As many of you may already know, this was an extremely high profile, media intensive case involving allegations of very serious (and somewhat inexplicable) conduct/misconduct by the lawyer/former prosecutor (and the presiding circuit judge) in a first degree murder trial in south Florida. It is also another disciplinary case where the Florida Supreme Court significantly increased a referee’s recommendation discipline, this time from a one (1) year suspension to a two year (2) suspension.

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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Florida Supreme Court disbars former judge for extensive texting with prosecutor while presiding in murder trial and for “dishonest conduct”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Florida Supreme Court opinion disbarring a lawyer and former judge for extensive texting with a prosecutor at the same time that she was the presiding judge in the prosecutor’s first degree murder trial. The opinion is The Florida Bar v. Ana I. Gardiner, No. SC11-2311 (June 5, 2014) and the Supreme Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2014/sc11-2311.pdf#search=gardiner

According to the opinion, the former judge/lawyer was the presiding judge in State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder case and former prosecutor Howard Scheinberg was the lead prosecutor in the case.

On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder and the former judge/lawyer presided over the penalty phase on April 30 and May 1, 2007, which resulted in a jury recommendation of the death penalty. On August 24, 2007, the former judge/lawyer entered an order sentencing Loureiro to death.

The referee’s report found that on March 23, 2007, several days before the jury returned its guilty verdict, the former judge/lawyer was having dinner at a restaurant when she accidentally encountered the prosecutor. After dinner, the former judge/lawyer, the prosecutor and some others decided to go to a bar and the prosecutor drove to the bar with a law student.

During the drive, the law student raised the appearance of impropriety that might exist if the presiding judge and the lead prosecutor in a pending murder trial socialized while the case was ongoing. The prosecutor was upset by this and left the bar shortly after arriving. The referee found that the former judge/lawyer tried to find out what had upset the prosecutor and spoke with him on the telephone several times during the following weekend.

The trial continued on Monday, March 26, 2007 and the former judge/lawyer did not disclose her interaction with the prosecutor on the record. On March 27, 2007, after the jury returned a guilty verdict, the former judge/lawyer and the prosecutor had a lengthy telephone conversation, wherein the prosecutor told the former judge/lawyer about his discussion with the law student on the way to the bar; however, according to the referee’s report, the former judge/lawyer assured the prosecutor that there was nothing to worry about and that she made a “conscious decision” not to disclose her social interaction and telephone calls.

The referee that the former judge/lawyer and the prosecutor began a “significant personal and emotional relationship” and, between March 23 and August 24, 2007, the day that the former judge/lawyer imposed a sentence of death, she and the prosecutor exchanged 949 cell phone calls and 471 text messages. On the day before, the day of, and the day following the imposition of the death sentence, the former judge/lawyer and the prosecutor communicated by telephone and text 44 times and the former judge/lawyer “deliberately and knowingly chose not to disclose this emotional relationship to the defense, despite her clear duty to do so.”

Loureiro’s attorneys filed a direct appeal to the Florida Supreme Court and soon after, media began reporting allegations that the former judge/lawyer and the prosecutor had met socially at a restaurant and a bar during the murder trial. The Court sent the matter back to the circuit court to consider the communications between the former judge/lawyer and the prosecutor, and determine whether a new trial should be ordered. The Broward County State Attorney’s office hired a special prosecutor to conduct the investigation and, on April 30, 2009, the former judge/lawyer appeared for a deposition. During her deposition testimony, she acknowledged for the first time her ongoing emotional relationship with the prosecutor. The State Attorney’s office eventually agreed to a new trial in the case. At the second trial, Loureiro was convicted and sentenced to life in prison.

In November 2008, the Judicial Qualifications Commission appointed a panel to investigate and determine whether the former judge/lawyer engaged in misconduct. The former judge/lawyer appeared before the panel in late November 2008 and, according to the referee, she “failed to disclose the honest and true nature of her relationship with the prosecutor.” In April 2010, the former judge/lawyer resigned as a circuit judge.

The referee found that the former judge/lawyer’s testimony would “leave any reasonable person with the misimpression that her relationship with (the prosecutor) was merely professional. She did not disclose their emotional relationship or the significant number of personal phone and text communications they exchanged during the penalty phase of the Loureiro trial. She also did not disclose that her relationship with (the prosecutor) continued after the trial and intensified. During the period from March 2008 through August 2008, former judge/lawyer and the prosecutor exchanged more than 3000 phone and text communications. The referee further found that former judge/lawyer’s testimony during the JQC proceedings was a ‘deliberate act of dishonesty and deceitfulness.’”

The referee recommended that former judge/lawyer be found guilty of violating three Florida Bar Rules, 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline) and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

After considering aggravating and mitigating circumstances, the referee recommended that the former judge/lawyer be suspended from the practice of law for one (1) year and pay the Bar’s costs. The Bar filed a Petition for Review and requested that the former judge/lawyer be disbarred. The Supreme Court opinion discussed the former judge/lawyer’s “dishonest conduct” and the harm it caused at length and “(c)onsidering (the former judge/lawyer’s) dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction.”

Bottom line: As many of you may already know, this was an extremely high profile, media intensive case involving allegations of very serious (and somewhat inexplicable) conduct/misconduct by the presiding judge and prosecutor in a first degree murder trial in south Florida. It is also another disciplinary case wherein the Florida Supreme Court significantly increased a referee’s recommendation discipline, this time from a one (1) year suspension to disbarment.

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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Florida Supreme Court increases referee’s recommended sanction of lawyer from 6 month suspension to 3 year suspension

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Florida Supreme Court opinion suspending a lawyer for 3 years after the referee recommended a 6 month suspension. The opinion is: The Florida Bar v. David Leonard Ross, No. SC11-1106 (May 29, 2014) and the opinion is here: http://www.floridasupremecourt.org/decisions/2014/sc11-1106.pdf

According to the Court’s opinion, The Florida Bar filed a 2 count complaint against the lawyer. The first Count stated that the lawyer was retained in 2006 to represent a client in an administrative disciplinary proceeding who was subject to a potential suspension from her employment due to a reprimand she had received at work. She signed a retainer agreement with the lawyer and paid a $10,000 retainer from which the lawyer would bill at an hourly rate.

The lawyer filed a response in the administrative proceeding on May 1, 2006, and requested a hearing; however, the client resigned from her position in June 2006 (before any hearings were scheduled) and she immediately informed the lawyer’s office that his services were no longer needed since she was now pursuing an EEOC claim. The client then requested an accounting and a final bill from the lawyer’s office but received no response. On at least four occasions between February 2007 and May 2007, she requested an accounting, a final billing, and she also requested that the lawyer close her account. The lawyer sent a brief e-mail response but did not respond to her request for a final billing.

In January 2008, the client’s new lawyer sent a certified letter to the lawyer, which again requested a final accounting and demanded the return of the remaining retainer. The lawyer signed the return receipt form but did not respond to the request. In April 2008, the client sent the lawyer an e-mail stating that it had been over twenty months since she first requested the final billing statement and the closing of her account. The lawyer replied in an e-mail that he thought his paralegal had resolved the problem and that he would “speak with (the paralegal) on Wednesday.”

After receiving no response after a week, the client told the lawyer that she had not heard from anyone in his office and requested that he call her the next day. Neither the client nor her new lawyer received any response until the lawyer sent the new lawyer an e-mail in September 2008 stating that his previous firm had dissolved and he had moved his office, and claiming that “although not technically obligated”, he would send a check for $5,000.00 at the end of the following week. The client and the new lawyer received nothing from the lawyer and, in November 2009, the client filed a complaint with The Florida Bar. In December 2009, the lawyer sent the client a cashier’s check for $5,000.00, but he never provided a final billing or an accounting.

The second Count stated that the lawyer was involved in an acrimonious family matter in California regarding his elderly aunt, who was a recent widow, and numerous relatives, including his aunt’s great-nephew named Rubin, who was serving as a co-trustee of the aunt’s trust. The lawyer apparently believed that Rubin was abusing his aunt both physically and financially.

In September 2009, the lawyer filed a proceeding in the U.S. District Court for the Central District of California against the conservator and trustees of his aunt’s trust, which included Rubin on behalf of himself and four other relatives. The lawyer listed himself as “per pro” and listed a lawyer named Waddington as the lawyer for the other four relatives with Waddington’s purported signature; however, the lawyer had actually forged Waddington’s signature. Waddington later stated that he would have been willing to represent the relatives after meeting with them and obtaining a retainer agreement; however, he never given the lawyer permission to represent that he was attorney of record to sign his name.

The District Court judge issued an Order to Show Cause and scheduled a hearing for October 2009. At that hearing, the judge entered an order dismissing the action for being improperly filed with the unauthorized and forged signature of Waddington. At a subsequent hearing in December 2009, the judge found the lawyer in contempt for filing the complaint with a forged signature and ordered him to pay sanctions of $5,000.00 and attorneys’ fees to both Waddington and the defense counsel. The lawyer filed an appeal in the Ninth Circuit Court of Appeals which was dismissed for failure to file an opening brief.

After the Bar Complaint was filed, a referee was assigned. After proceedings were held, the referee recommended that the lawyer be found guilty of violating multiple Bar Rules and found, in aggravation, that the lawyer had a prior disciplinary offense (thirty-day suspension in 2001), and substantial experience in the practice of law (since the lawyer was admitted to practice in 1982). The referee also found, in mitigation, absence of a dishonest or selfish motive; imposition of other penalties or sanctions; and remorse, and recommended that the lawyer be suspended for six (6) months.

The lawyer filed a petition for review and argued that the referee should have given more weight to the three mitigating factors and that the recommended sanction of a six-month suspension was too severe and was not supported by case law. The lawyer also argued that his due process rights were violated since the referee adopted the draft report provided by the Bar.

The opinion reviewed the Bar rules violated, the aggravating and mitigating circumstances, and the Standards for Lawyer Sanctions, and reversed the referee’s recommended six (6) month suspension and imposed a three (3) year suspension. Justice Labarga issued a dissenting opinion (with which Justice Canady concurred) stating that the lawyer should have been disbarred:

“Although a sanction that provides an opportunity for rehabilitation is often an appropriate way to address attorney misconduct, the circumstances of this case militate against such consideration. First, Mr. Ross has been an attorney for more than three decades. Rather than operate as a factor in favor of leniency, his length of experience actually aggravates the nature of his conduct because he cannot rely on inexperience or lack of knowledge as to the high standards held for attorneys. Second, Mr. Ross’s disciplinary history reflects a prior thirty-day suspension. See Florida Bar v. Ross, 797 So. 2d 589 (Fla. 2001) (table). Therefore, the conduct for which Mr. Ross is now held to account leaves significant doubt as to any prospect of rehabilitation. Combined with his prior history of disciplinary action, Mr. Ross’s unacceptable acts of misconduct lead me to the inescapable conclusion that disbarment is the appropriate remedy. Therefore, I dissent.”

Bottom line: The referee recommended that this lawyer receive a 6 month suspension based upon the above facts. The lawyer appealed (filed a petition for review) and the Court increased the suspension to 3 years. Two Justices would have disbarred the lawyer.

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, Attorney misrepresentation, deceit, dishonesty, Florida Bar, Florida Lawyer Ethics and Professionalism, fraud, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer misrepresentation, Lawyer sanctions

Colorado lawyer suspended for 6 months for making threatening call to Charles Schwab office after he was locked out of spouse’s 401k account

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Colorado Supreme Court opinion suspending a lawyer for 6 months for making a threatening call to an Arizona Charles Schwab office after he was locked out of his spouse’s 401k account. The opinion is In the People v. Stuart Adam Jay, 14PDJ030 (5/13/14) and a summary of the disciplinary opinion on the Colorado Supreme Court’s website is here:

http://www.coloradosupremecourt.us/PDJ/ConditionalAdmission/Jay,%20Conditional%20Admission%20of%20Misconduct,%2014PDJ030,%205-13-14.pdf

According to the case summary on the Colorado Supreme Court’s webpage, on November 13, 2013, the lawyer made a threatening phone call to an Arizona Charles Schwab office because he was locked out of his wife’s 401k account and wanted access. He made threats against the Denver Charles Schwab office, stating that if he “did not gain access to his wife’s account innocent people at the Denver office would be ‘hurt’ and the office would be ‘gone.’”

The Denver police department sent two officers to the lawyer’s residence and he answered the door holding a “two-foot long antique bayonet”. The officers pulled their firearms and told the lawyer to drop the sword. He complied and was taken to jail and charged. The lawyer pled guilty in January 2014 to a charge of felony menacing and was sentenced to two years deferred judgment and supervised probation.

The lawyer self-reported the criminal conviction and agreed to a conditional admission that he violated Colorado Bar Rule 8.4(b), which prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

According to the summary, “(the lawyer’s) lengthy struggle with depression, anxiety, and treatment for those conditions may have contributed to his misconduct.” The conditional admission of misconduct was approved and the lawyer was suspended for six months effective May 13, 2014 with a requirement that he petition for reinstatement to practice.

Bottom line: This lawyer appears to have had serious stress/depression/anxiety issues which caused a complete breakdown and the bizarre behavior. Stress can be any lawyer’s worst enemy. Hopefully he will get help and will be able to recover and return to practice.

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 conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer criminal conduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer threats and discipline

Georgia lawyer reprimanded for violating lawyer/client confidentiality in responding to client’s negative internet reviews

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Georgia Supreme Court disciplinary opinion which imposed a reprimand on a lawyer who violated attorney/client confidentiality in response to negative reviews that a client had made on internet “consumer Internet pages”. The opinion is In the Matter of Margrett A. Skinner, Case No. S14Y0661 (Ga. Supreme Court 5/19/14) and the disciplinary opinion is here: http://www.gasupreme.us/sc-op/pdf/s14y0661.pdf

According to the opinion, the lawyer submitted a petition for voluntary discipline for a review panel reprimand, which was rejected and a special master was assigned to conduct proceedings and hold proceedings and an evidentiary hearing. In his report, the special master found that a client retained the lawyer in July 2009 to represent her in an uncontested divorce, and paid $900.00, including $150.00 for the filing fee.

The client had no contact from the lawyer for six weeks and, after multiple attempts to contact the lawyer, the client was able to reach her in October 2009. The lawyer said that she had lost the documents that the client had given to her in July 2009. The lawyer and the client then met again and the lawyer then began to draft pleadings for the divorce. The initial drafts of the pleadings had multiple errors, and the lawyer and the client exchanged several drafts and communicated by e-mail about the status of the case in October and early November 2009. These communications ended by mid-November 2009 and there were no more communications until March 18, 2010, when the client told the lawyer that her husband would not sign the divorce papers without revisions.

There was a dispute over fees and expenses and the lawyer asked the client for an additional $185.00 for travel expenses and the filing fee. In April and early May 2010, the lawyer and the client exchanged e-mails about the request for additional fees and expenses. On May 18, 2010, the client told the lawyer that she had hired another lawyer and asked the lawyer to deliver her file to her new lawyer and refund $750.00. The lawyer said that she would not release the file unless she was paid. The lawyer eventually refunded $650.00 to the client; however, she never provided the file to the new lawyer, stating that it had only her “work product.” The new lawyer completed the divorce within three months of being retained.

The client then posted negative reviews of the lawyer on three “consumer Internet pages”. When the lawyer learned of the negative internet reviews, she posted an online response which contained personal and confidential information about the client which the lawyer had obtained in the course of the representation. The lawyer identified the client by name, identified the employer of the client, stated how much the client had paid, identified the county where the divorce had been filed, and stated that the client had a boyfriend.

The client subsequently filed a Bar complaint against. In her response in August 2011, the lawyer said that she would remove her posting from the internet; however, it was not removed until February 2012.

The special master held a hearing and found that the lawyer violated Georgia Bar Rule 1.4 (communication with client) when she failed to keep her client reasonably informed of the status of the divorce between July and October 2010, and Georgia Bar Rule 1.6 (confidentiality) when she disclosed confidential information about the client on the Internet. After discussing the underlying circumstances and mitigation, the special master recommended a public reprimand.

The disciplinary opinion stated “(i)n this case, the improper disclosure of confidential information was isolated and limited to a single client, it does not appear that the information worked or threatened substantial harm to the interests of the client, and there are significant mitigating circumstances.” The opinion imposed a public reprimand and required the lawyer to consult with the Georgia Bar’s Law Practice Management Program and implement any suggestions in her law practice.

Bottom line: As it is with personal digital/internet communication (including e-mail, texting, and facebook etc.), this is a clear example of how the internet can make it much too easy to react quickly and badly to a perceived slight, such as a bad client internet review. Before responding to any internet postings, a lawyer must seriously consider the ethical implications and not act impulsively, which this lawyer apparently did.

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, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing client confidential information on internet, Lawyer sanctions