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

Leave a comment

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

Leave a comment

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

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

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

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

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

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

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

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

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

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

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

Let’s be careful out there.

Disclaimer: this blog is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

Leave a comment

Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer disrupting tribunal, Lawyer disruptive conduct, Lawyer disruptive litigation conduct, Lawyer ethics, Lawyer Ethics and Professionalism

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

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

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

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

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

“Why don’t you grow a pair?”

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

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

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

According to the lawyer’s testimony:

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

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

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

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

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

Let’s be careful out there.

Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false testimony, Lawyer lack of diligence, Lawyer Professionalism, Lawyer sanctions