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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New Jersey Supreme Court suspends lawyer for one year as reciprocal discipline for New York litigation misconduct

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court order/opinion which imposed a one year reciprocal suspension on a lawyer as reciprocal discipline for misconduct in a New York litigation matter. The disciplinary opinion is In the Matter of Gregory N. Filosa, Case No. 14-146 (NJ SC 11/6/14) and is online here: http://www.judiciary.state.nj.us/drb/decisions/Filosa_14_108.pdf

According to the opinion and disciplinary report, the misconduct involved the lawyer’s handling of an employment discrimination matter against the client’s former employer. The lawyer was an associate at his law firm and was supervised by firm partners. The employer requested information about the client’s efforts to mitigate damages through, inter alia, new employment.

The firm retained an economist as an expert to assess damages. The economist prepared an analysis based on the assumption that the client would be unemployed through the end of 2010. Before service of the expert report, the client accepted a job with Kraft that paid her more than she made at the former employer. She advised the associate about her employment, who told his supervisor. The law firm then sent the inaccurate expert report to opposing counsel and demanded a $350,000.00 settlement. The client was later deposed and lied about accepting the job at Kraft. The lawyer was aware that the testimony was false but did not correct it either at the deposition or later.

During the pendency of the case, the former employer learned about the client’s new position at Kraft and moved for sanctions and the dismissal of the case. The supervising attorney and another partner from the law firm were present at the May 2011 oral argument on the motion; however, the lawyer was not present.

After the hearing, the trial judge imposed a $2,500.00 sanction against the client and a $15,000.00 sanction against the law firm due to the “false testimony by (the client) at her deposition” as well as the lawyer (and his supervisor’s) efforts “to conceal (the client’s) new employment and to leverage a false expert report in order to extract a favorable settlement.” The judge did not to dismiss the case against (the employer) at the time. The lawyer resigned from the law firm on May 31, 2011.

The New York disciplinary board found that the lawyer had engaged in misconduct by “misleading (the former employer) about (client)’s employment prospects through the inaccurate expert report; by failing to correct (the client)’s deposition testimony; by failing to produce documents that would have revealed (the client)’s two job offers; and by trying to settle the case quickly ‘before the defendants caught on to the truth’”. He received a one (1) year suspension in New York in 2013. The New Jersey Supreme Court then imposed a one (1) year suspension nunc pro tunc as reciprocal discipline.

Bottom line: This lawyer was found to have concealed a client’s new employment, leveraged a false expert report in order to extract a favorable settlement, allowed the client to lie during a deposition, and failed to correct the client’s false testimony. Some other states might have imposed a longer suspension or disbarred the lawyer.

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions

U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

Hello everyone and welcome to this Ethics Alert which will discuss the recent Washington Post article which states that the Justice Department has prohibited U.S. Attorneys from requiring waivers of ineffective assistance of counsel in exchange for a plea. The Post article is here: http://www.washingtonpost.com/world/national-security/doj-to-amend-competent-counsel-waiver-practices-as-holder-prepares-to-step-down/2014/10/14/465efbde-53ba-11e4-809b-8cc0a295c773_story.html?hpid=z3

According to the Washington Post article, the Justice Department said on October 14, 2014 that, effective on that date, federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

“A memo by (Deputy Attorney General James M.) Cole directs federal prosecutors to no longer require criminal defendants to waive their future claims of ineffective assistance of counsel in plea agreements. It also instructs federal prosecutors to stop enforcing waivers that have already been signed in cases where defense counsel provided ineffective assistance that resulted in prejudice or where the defendant’s claim raises a serious issue that a court should resolve.” The Post article states that some U.S. attorney’s offices no longer require defendants to waive their right to make future claims about the effectiveness of their counsel; however, before the new policy was announced, 35 of the Justice Department’s 94 U.S. attorney’s offices still permitted the waiver requirement.

Bottom line: As I discussed in my 12/13/12 Ethics Alert blog, which is here: http://jcorsmeier.wordpress.com/2012/12/13/florida-bars-board-of-governors-approves-advisory-opinions-related-to-waivers-of-ineffective-assistance-and-prosecutorial-misconduct-and-permitting-lawyers-to-authorize-non-lawyers-to-use-e-portal-c/, Florida Bar Ethics Advisory Opinion 12-1 opines that it was unethical for criminal prosecutors to request such ineffective assistance waivers and for criminal defense lawyers to accept them. The opinion also states that it was unethical for prosecutors to request, and defense lawyers to agree to waivers of prosecutorial misconduct. This new DOJ policy now prohibits all federal criminal prosecutors from requiring such a waiver as part of a criminal plea.

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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Filed under Ethics of criminal plea waivers, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conflict of interest, Lawyer ethics, Lawyer Ethics and Professionalism, Prosecutorial misconduct ethics

Illinois Disciplinary Review Board recommends 5 month suspension for lawyer who failed to correct false client affidavit and made false statements to court

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois disciplinary Review Board report which recommended a 5 month suspension for a lawyer who was found to have failed to correct his client’s false affidavit claiming sole heirship in an estate matter and made false statements to the court. The opinion is In re: John F. Argoudelis, No. 6200842, Commission No. 2012PR00160 (October 2, 2014) and is online here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11497

According to the opinion, the lawyer agreed to represent a client regarding the administration of the client’s brother’s estate after the brother died in 2008. The client was angry that a great-niece who had cared for the brother during his lifetime was named as a joint tenant on one of the brother’s bank accounts and received about $400,000.00. The client told the lawyer that he was his brother’s only heir and, based on the information he received from the client, the lawyer drafted and filed an “affidavit of heirship” and letters of administration stating that the client was the only surviving heir. The probate court then appointed the client as administrator of the estate. In early 2009, the lawyer learned that the client had lied to him and that the brother had additional heirs; however, he took no steps over the next seventeen months to correct the false affidavit or file an amended affidavit.

At a hearing before the Illinois Hearing Board, the lawyer stated he failed to amend the affidavit because he forgot about it and he said that he also forgot about the existence of other heirs. He further testified that he was more focused on the issue as to whether the client could obtain the money received by the great-niece.

The Hearing Board found that the lawyer’s testimony was not credible since the lawyer had discussed the existence of additional heirs with various individuals; had conducted research regarding distribution law; and had formulated a potential argument to limit the share of the other heirs. The Hearing Board found that the lawyer knowingly failed to correct the false statement in the affidavit and the lawyer did not challenge that finding.

After the client’s appointment as administrator of the estate, the lawyer also used the false information regarding the heirship to obtain information from financial institutions in an attempt to support the client’s claims against the great-niece. The lawyer also sold the brother’s home in 2009 without notifying the other heirs. The lawyer’s mother-in-law was the listing real estate agent and the lawyer was the title agent in that sale. The lawyer received over $9,000.00 in attorney’s fees from the sale, most of which was for fees that the client owed him to pursue the claim against the great-niece.

In aggravation, the Hearing Board found that the lawyer’s conduct caused harm and “jeopardized the interests of the other heirs. His actions prevented the heirs from taking any action with respect to the sale of (the brother’s) house. He took $9,000 in fees from the sales proceeds that arguably should not have been an expense borne by the other heirs. His conduct also harmed his own client who was sanctioned for engaging in deceit.”

“As noted by the Hearing Board, it is unlikely that (the client) would have been sanctioned and ordered to pay $9,000 had (the lawyer) acted appropriately and amended the affidavit of heirship as soon as he learned it was false. Finally, we agree with the Hearing Board that the judicial system was harmed due to (the lawyer’s) conduct. (The lawyer’s) conduct forced the other heirs to take action in court, at additional expense to the heirs and inconvenience to the court, in order to correct (the lawyer’s) wrongdoings.”

“(The lawyer’s) misconduct was serious. When he learned his client had lied to him and that he had included those lies in material statements he made to the court, (the lawyer) had an obligation to stand up to his client and to persuade his client to remedy the false statements. (The lawyer) did not do so, and his repeated failure to do so over such an extended period of time warrants a sanction greater then a censure or a very brief suspension.”

“While no two disciplinary cases are exactly alike, we view this case as more comparable to In re Vitell, 00 CH 95 (Review Bd., Dec. 31, 2003), petition for leave to file exceptions denied, No. M.R. 19303 (May 17, 2004), where the Court imposed a five month suspension upon an attorney who negotiated approximately eighty-eight disability checks after the death of a client so the client’s widow could continue to receive the disability payments. It is a case where a lawyer aids a client without taking into account his professional obligations to act with integrity. Accordingly, we conclude that a five month suspension adequately addresses the seriousness of (the lawyer’s) misconduct, complies with the purposes of discipline, and is consistent with other sanctions.” The Disciplinary Review Board’s findings will now be reviewed by the Illinois Supreme Court.

Bottom line: In addition to failing to correct the materially false affidavit that had been filed with the court, this lawyer was found to have made materially false statements to the court, which harmed the client and were prejudicial to the administration of justice. These allegations would appear to be serious enough to warrant more than a 5 month suspension; however, regardless of the outcome, this case clearly illustrate a lawyer’s serious responsibility to correct false statements and documents which have been submitted to the court as soon as practicable after learning of their falsity.

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false testimony, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions

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

Leave a comment

Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer discipline, Lawyer dismissal of Bar complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer websites