Category Archives: Attorney misrepresentation

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

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

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

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

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

“Why don’t you grow a pair?”

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

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

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

According to the lawyer’s testimony:

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

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

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

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

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

Let’s be careful out there.

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

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

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South Carolina Supreme Court prohibits another Florida lawyer from practicing law who solicited over the internet, made misrepresentations, and represented clients

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the South Carolina Supreme Court which prohibited another Florida lawyer who was not admitted in that state from admission to practice for soliciting over the internet and representing clients, making false statements, and failing to respond to the allegations, this time permanently. The opinion is: In the Matter of Alma C. Defillo, SC Case No. 27431 (August 13, 2014) and is at: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27431.pdf.

According to the opinion, formal disciplinary charges were filed against the lawyer, who was licensed to practice in Florida but not in South Carolina. The first count alleged that the lawyer opened an office in Greenville, South Carolina in 2012, “ostensibly to handle federal immigration matters. Respondent had no law partners or associates who were licensed in South Carolina except for a period of approximately fourteen days in August 2012. Respondent offered to provide legal services in South Carolina using methods specifically targeted at potential clients in South Carolina, including a law firm website, business cards, print advertisements, and radio commercials…”

“In connection with her representation of two clients in federal immigration matters, respondent sent letters to judges for the state circuit court in Greenville, requesting certification that the clients were crime victims. The letterhead contained the phrase “Attorneys and Counselors at Law” when, in fact, respondent had no partners or associates at the times the letters were written. Respondent’s letterhead included her Greenville office address without indicating the jurisdictional limitations on her ability to practice law.”

“Respondent advertised her law firm through the use of a website available to residents of South Carolina. Included on the website are references to respondent’s Greenville office. Respondent’s website contains material misrepresentations and omits facts necessary to make the contents considered as a whole not materially misleading. On her website, respondent advertises her office in Greenville but fails to state that she is not licensed to practice law in South Carolina or to otherwise set forth the jurisdictional limitations on her practice in this state. Further, respondent’s website is not limited to the promotion of her federal immigration practice as she advertises her experience in both criminal and family law and offers to ‘analyze the facts of [her prospective client's] case by applying current…State Laws.’ In addition to false and misleading statements regarding offers to practice in this jurisdiction, respondent repeatedly refers to the firm’s “lawyers” and “attorneys” when, in fact, respondent is a sole practitioner with no partners, only sporadically employing associates in her law firm.

“Respondent’s website compares her services with other lawyers’ services in a way that cannot be factually substantiated by stating her law firm is ‘unique’ because she and her staff are fluent in Spanish and English. Additionally, respondent includes forms of the words ‘specialist’ and ‘expert’ on her website even though she is not a specialist certified by this Court. Respondent promotes her law firm by distributing printed business cards. The business cards advertise her office in Greenville without disclosing the fact that respondent is not licensed to practice law in South Carolina or disclosing the geographical limitation of her law practice in this state.

“Respondent promotes her law firm by publication of print advertisements in Spanish-language magazines and other periodicals distributed in South Carolina. Respondent’s print media advertisements lists her office in Greenville without disclosing the fact that she is not licensed to practice law in South Carolina or disclosing the jurisdictional limitations on her practice in this state. Respondent promotes her law firm by broadcasting commercials on Spanish-language radio stations in South Carolina. Respondent’s radio commercials include reference to her office in Greenville without disclosing the fact that she is not licensed in South Carolina or disclosing the geographical limitations of her practice.”

The second count stated: “Respondent initially cooperated with the disciplinary investigation by timely submitting her responses to the notice of investigation and ODC’s subpoena for her client files and record of advertising dissemination. However, respondent failed to submit a response to the supplemental notice of investigation served on her on April 5, 2013. As a result of her failure to submit a response to the supplemental notice of investigation, ODC issued a notice for respondent to appear for an interview on May 23, 2013. Respondent contacted ODC and requested the interview be postponed.

“Pursuant to that request, ODC issued an amended notice to appear, setting the interview for May 31, 2013. Respondent failed to appear, although her husband called ODC thirty-two minutes before the scheduled interview time to state respondent would not be attending the interview due to a court appearance in Georgia. Respondent’s husband was asked to instruct respondent to contact ODC after her court appearance in Georgia to reschedule the interview. As a result of respondent’s failure to contact ODC pursuant to this instruction, ODC issued a third notice to appear, setting the interview for July 2, 2013. Respondent did not appear on July 2, 2013, and has not contacted ODC with regard to this disciplinary matter since that time.

“Respondent made the following false or misleading statements in her response to the initial notice of investigation that she submitted to ODC: My practice is limited to Immigration Law. I have [not] portrayed myself to practice any other law but federal immigration law. At no time I have portrayed myself to represent residence [sic] of South Carolina with any legal services other than those that are exclusively related to immigration law. I solely practice federal immigration law.”

The SC disciplinary hearing panel found that the lawyer was subject to discipline pursuant to SC Bar Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct or other rules of this jurisdiction regarding professional conduct of lawyers) and Rule 7(a)(3) (it shall be ground for discipline for lawyer to willfully violate valid order of Commission or hearing panel, willfully fail to appear personally as directed, or knowingly fail to respond to lawful demand from disciplinary authority to include request for response or appearance) and that she violated SC disciplinary rules related to advertising, false statements and other rules.

The opinion stated that South Carolina has jurisdiction over all allegations that a “lawyer” has committed misconduct and that the term “lawyer” includes “a lawyer not admitted in this jurisdiction if the lawyer …offers to provide any legal services in this jurisdiction [and] anyone whose advertisement or solicitations are subject to Rule 418, SCACR Rule 2(q).” The opinion also states that the “authority to discipline lawyers and the manner in which the discipline is imposed is a matter within the Court’s discretion. In the Matter of Berger, 2014 WL 1386688 (2014); In the Matter of Van Son, 403 S.C. 170, 742 S.E.2d 660 (2013). The misconduct in this matter is similar to that in In the Matter of Van Son, id., where a lawyer who was not admitted in this state sent solicitation letters to at least two South Carolina residents and, thereafter, failed to cooperate with ODC’s investigation. In addition to other sanctions, the Court barred the lawyer from admission in this state and from advertising or soliciting clients in South Carolina for a period of five years.”

“In the current matter, not only did respondent target residents of South Carolina through various forms of advertising including radio communications and print media, but she also held herself out as licensed to practice law in this state, welcomed clients with criminal and family law concerns, and sent letters on behalf of clients addressed to state court judges. Further, when she did participate in the disciplinary investigation, respondent made false statements of material fact concerning the extent of her practice and the extent of her advertising in South Carolina to ODC. Since then, respondent has failed to cooperate in the disciplinary investigation and to appear for the hearing. (citation omitted.

“We find it appropriate to permanently debar respondent from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing her to seek admission. Further, we prohibit respondent from advertising or soliciting business in South Carolina without first obtaining an order from this Court allowing her to advertise or solicit business in this state. Before seeking an order from this Court to either allow her to seek admission or to advertise or solicit, respondent shall complete the South Carolina Bar’s Legal Ethics and Practice Program Ethics School and Advertising School. Respondent shall pay the costs of the investigation and prosecution of this matter by ODC and the Commission within thirty (30) days of the date of this order.”

Bottom line: For the second time this year (the first was Berger in April, which I blogged about here: http://jcorsmeier.wordpress.com/2014/04/11/south-carolina-supreme-court-bans-florida-lawyer-from-practicing-law-who-solicited-over-the-internet-and-represented-clients-in-that-state/, the South Carolina Supreme Court has “debarred” a Florida lawyer from practicing law in that state for targeting SC residents on the internet and other forms of advertising, false advertising, and false statements in the disciplinary investigation and violating SC Bar rules, this time permanently.

Let’s be careful out there!

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

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

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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

New York lawyer suspended for, inter alia, agreeing to assist a client in a malpractice claim against his own law firm

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York disciplinary opinion which imposed a one (1) year suspension on a lawyer who, along with other misconduct, entered into an agreement with a client to assist in a malpractice action against his own law firm. The opinion is Matter of Novins, 2014 NY Slip Op 03465 (NY Appellate First Division 5/13/14) and the disciplinary opinion is here: http://www.nycourts.gov/reporter/3dseries/2014/2014_03465.htm

According to the opinion, the lawyer was hired by a New York law firm in 2006 and was assigned to work on a personal injury action filed in 1994 against the City of New York and an off duty New York City police officer on behalf of another off duty New York City police officer (the client), who had been shot and wounded in a bar by that off-duty police officer. Although the lawyer’s firm served the City with a summons and complaint, it never served the defendant police officer. In 2007, the City was granted summary judgment in the personal injury action on the ground that it had not negligently supervised the shooting police officer because it did not have notice of his dangerous propensities. The summary judgment was affirmed in 2008.

In January 2008, while the motion for leave to appeal was pending, the lawyer and the client met in a restaurant and signed a “Personal Services Agreement” under which the client agreed to “give” the lawyer 45% of any net recovery he received related to the shooting incident. This agreement included the personal injury action and a legal malpractice claim against the lawyer’s firm for “negligently failing to timely serve the defendant police officer, for neglecting to work on (the) case over the many years, for failing to take the deposition of the defendant police officer, for having failed to obtain a copy of the defendant police officer’s Personnel File in a timely manner and for failing to bring a Motion … for spoliation of this key evidence.” The agreement was drafted by the lawyer; however, it did not specifically state what services that the lawyer would provide. The lawyer acknowledged during the disciplinary proceedings that he agreed to serve as a witness for the client in the malpractice action against his employer.

During the disciplinary proceedings, the lawyer stated that the client brought up the subject of additional compensation and that the 45% fee was to compensate him for his extraordinary efforts in the personal injury action and for his willingness to assist the client in pursuing the malpractice claim, which would require him to leave his law firm (the putative legal malpractice defendant). The client denied this and stated that the lawyer produced the agreement at the meeting and asked him to sign it, telling him that he had notes and documents that would prove the legal malpractice claim. The lawyer provided the client with a list of legal malpractice attorneys and concealed the agreement from his law firm.

In May 2008 (while the lawyer was still employed with the law firm), a malpractice action was filed against the lawyer’s firm and principals and “(b)etween February and March 2009, (the lawyer) left a series of voice-mail messages for (the client) asking him to call him back. On April 28, 2009, (the lawyer) left (the client) a message in which he referred to risking his neck by putting certain notes back into the personal injury action file which (the client) would need for the malpractice action. In May 2009, respondent left a message stating that he would be leaving the (law) firm in 30 days and would be able to prove the malpractice and coverup.”

On May 28, 2009, the lawyer left a message with the client complaining that he had called him about 30 times but received only one call back. The lawyer falsely stated that he had left his law firm and said that he considered the agreement to be in full force and effect. He also threatened to throw away all the evidence in his possession unless the client called him back. Ten minutes later, the lawyer left another message stating he would take appropriate action to enforce the agreement as soon as he left his firm. The lawyer admitted during the disciplinary proceedings that the purpose of the calls was to compel the client to honor the agreement or at least renegotiate its terms so that he could have a financial recovery for the malpractice claim.

In April or May 2010, during the course of discovery, the lawyer’s law firm learned of the secret agreement with the client, but did not fire the lawyer. On or about August 17, 2010, the law firm learned of the messages that the lawyer left on the client’s voice mail and the lawyer was deposed in the malpractice action on August 20, 2010 and retracted his allegations of malpractice against the law firm.
The client filed a disciplinary complaint against the lawyer on August 26, 2010. The law firm fired the lawyer on August 31, 2010 and filed a disciplinary complaint against him on September 7, 2010. In 2012, the New York Disciplinary Committee brought six charges against the lawyer and a disciplinary panel conducted evidentiary proceedings.

The disciplinary panel found that the lawyer charged an excessive and unreasonable fee, engaged in conduct which reflected adversely on his fitness as a lawyer, acquiesced to the payment of compensation to himself as a witness which testimony was contingent on the outcome of a case, violated his duty of loyalty to both the client and his law firm by attempting to charge a client for information that both he and the firm were ethically obligated to provide and by concealing the agreement from his employer, and threatening to destroy evidence that was apparently essential to the client’s malpractice claim. The panel recommend that the lawyer be suspended from practice for one (1) year.

After considering mitigating and aggravating factors and relevant case law, the opinion granted the Disciplinary Committee’s Motion to approve the hearing panel’s recommendation that the lawyer be found guilty of all counts and suspended him from the practice of law for one (1) year.
Bottom line: This opinion tells a quite sordid tale of duplicity, false statements, disloyalty, attempted coercion, and greed as well as just plain dumb actions by a lawyer who was unbelievably disloyal to both his law firm and to a client. Sometimes you think you have seen it all…

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, Excessive fee, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer conflict of interest, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper fees, Lawyer misrepresentation, Lawyer sanctions

D.C lawyer disbarred for, inter alia, filing frivolous motions, failing to appear, introducing confidential records into public record, and fabricating appeal record

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Washington, D.C. Court of Appeals opinion disbarring a lawyer who, inter alia, filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness, failed to file certain motions which prejudiced the client, introduced the client’s confidential medical records into the public record, and sought and received a six month continuance of the client’s trial without her consent. In another matter, the lawyer failed to include fact witnesses in a pretrial statement which caused his client’s case to be dismissed and then fabricated a pretrial statement on appeal. The opinion is In re Ellis S. Frison, Jr., Case No. 13-BG-545 (D.C. Ct. of Appeals 4/24/14) and the opinion is here: http://www.dccourts.gov/internet/documents/13-BG-545.pdf

According to the opinion, the lawyer represented a client in an employment discrimination suit starting in September 2005, until she discharged him in November 2008. During the representation, the lawyer filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness who was hostile to the client, failed to file certain motions which prevented the client from presenting evidence for her retaliation claims, placed the client’s confidential medical records into the public record without justification, and sought and received a six month continuance of the client’s trial without consulting with her or obtaining her consent.

After the client discharged the lawyer in November 2008, he threatened her and refused to release her file to her. She then filed a Bar complaint and initiated an arbitration claim seeking repayment of some of the fees she had paid to the lawyer. The lawyer then submitted inconsistent bills that he had never given the client and which inflated the amount owed under the initial fee agreement.

After an award was entered against the lawyer, he filed a civil suit against her using the same falsified billing records that the arbitrator had rejected. He also submitted similar falsified billing records to the Bankruptcy Court, where he had filed a claim against the client. The opinion states that “(the lawyer) repeatedly submitted (the client’s) confidential medical records subject to attorney-client privilege into the public records in these and other proceedings.

In a second matter, the lawyer represented a client and her minor daughter in a personal injury action. He failed to identify any fact witnesses in the joint pretrial statement and was not able to put any fact witnesses on at trial to establish that the defendant had caused the client’s daughter’s injuries. The court then entered a judgment as a matter of law for the defendant. On appeal, respondent submitted a fabricated joint pretrial statement that included fact witnesses, and told the appeals court (the same court that issued this opinion) at oral argument that he had sent the fabricated document to opposing counsel prior to trial.

Bottom line: This lawyer certainly stretched the limit of how many Bar rules can be found to have been violated in a single Bar discipline matter. The misconduct also occurred at the trial and appellate levels and, amazingly, the lawyer fabricated a document in an appeal before the appellate court which determines discipline in D.C. Bar cases.

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, Attorney/client confidentiality, Attorney/client privilege and confidentiality, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements in response to Bar complaint, Lawyer false testimony, Lawyer lack of competence, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions, Privilege

Iowa Supreme Court dismisses Bar complaint against a lawyer who was unknowingly involved in fraudulent transfers of a client’s assets

Hello and welcome to this Ethics Alert blog which will discuss the recent Iowa Supreme Court opinion dismissing a disciplinary action against a lawyer who “unknowingly” participated in the fraudulent transfers of a client’s assets to the client’s wife and relatives to avoid creditors. The disciplinary opinion is Iowa Supreme Court Attorney Discipline Board v. Mason James Ouderkirk, No. 13–1124 (March 28, 2014) and the disciplinary opinion is here: http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20140328/13-1124.pdf

According to the opinion, the lawyer represented a wealthy farmer (Rodney Heemstra) who shot and killed his neighbor (Tommy Lyon) and was ultimately convicted of involuntary manslaughter. The lawyer represented the client at the outset of the criminal proceedings and during part of the civil wrongful-death litigation, which later resulted in a multimillion dollar judgment against the client who apparently vowed that the widow “would not get one dime” of his money. The lawyer was involved in the transfers of the client’s assets to revocable trusts, his wife, and relatives.

The deceased neighbor’s widow filed a civil action against the client and several relatives and the court ultimately found that the transactions were fraudulent. Although he was not named as a defendant in the subsequent civil litigation, the lawyer was required to respond to a motion to compel his testimony under the crime-fraud exception of the privilege. The court ruled in that case that “(b)ased on the current state of the record in this case, the court does not find that the Plaintiffs have made a prima facie showing of fraud encouraged or participated in by (the lawyer’s client).”

The deceased neighbor’s widow also filed a Bar complaint against the lawyer and he was charged with violating multiple Bar rules. After a 2 day evidentiary hearing, the Iowa Grievance Commission found that the lawyer had been deceived and was told that there were had valid reasons for transferring the property and that much of the property was being sold to a bona fide purchaser.

The commission also found that, although the lawyer lacked actual knowledge of the fraudulent nature of the transfers, he failed to recognize the “red flags” of one of the fraudulent conveyances and violated several Bar rules, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration for justice. The commission found this conduct to be “an uncharacteristic lapse of his professional judgment” and recommended a public reprimand.

The Supreme Court opinion stated that: “(f)undamentally, it was the (client’s) misrepresentations that triggered the lengthy court proceedings to unwind their fraudulent transactions, not (the lawyer’s) conduct. The opinion concluded that the Board failed to prove “by a convincing preponderance of the evidence” that (the lawyer’s) conduct violated any Bar Rules and dismissed the Bar complaint with prejudice.

Bottom line: This case is unusual since there are very few published Bar discipline opinions which outright dismiss a complaint against a lawyer. This opinion is very lengthy and provides great detail regarding the reasons for the dismissal and citing to numerous cases to support it. Notwithstanding the dismissal of the complaint, the lawyer was required to retain a lawyer and defend himself in the lengthy Bar discipline matter and respond to the motion to compel his testimony in the civil litigation.

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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