Category Archives: Attorney/client privilege and confidentiality

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

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

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

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

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

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

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

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

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

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

Let’s be careful out there.

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

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

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

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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The Florida Bar’s Board of Governors considers revisions to confidentiality, trust account and fee rules and include definitions of retainers, flat fees, and advance fees

Hello and welcome to this Ethics Alert blog which will discuss the recent Notice of the Florida Bar’s Board of Governors of its intent to consider changes to the Rules Regulating The Florida Bar. The Notice is in the February 15, 2014 Florida Bar News and is on the Bar’s website here: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/d77053b5698a70ef85257c7b004b3384!OpenDocument

The most significant of the proposed revisions would amend Rule 4-1.6 to permit lawyers and law firms to reveal some confidential client information when a lawyer is changing law firms or law firms are merging if the confidential information will not injure the client. The proposed change to Rule 4-1.6 would add subsection (c)(6) to provide for limited disclosure of information “to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” Language would also be added subsection (e) to provide that, “A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

Another proposed revision would amend Rule 4-1.5 stating that nonrefundable fees are considered earned on receipt and must not be placed in lawyers’ trust accounts and also providing a definition for retainers, flat fees, and advance fees. The Comment to Rule 4-1.5 would also provide, “A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer’s trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned. Nonrefundable fees are, as all fees, subject to the prohibition against excessive fees.”

The proposed revisions would also amend Rule 5-1.1 and create an exception within subdivision (a)(1) related to commingling to permit a lawyer to deposit sufficient funds into the lawyer’s trust account to make up a shortfall in the trust account caused by misappropriation, bank error, bank charge or a bounced check.

The amendments to Rule 4-1.6 resulted from recommendations made by the ABA Ethics Commission 20/20 and, as I pointed out in a previous Ethics Alert, the amendments to Rule 4-1.5 resulted from an earlier attempt by The Florida Bar to amend the Comment to Rule 4-1.5 which was rejected by the Florida Supreme Court in an opinion stating that any definitions should be in the rule, not the comment. According to the Notice, if you would like a copy of the text of any of the proposed amendment, you can e-mail jgreen@flabar.org or call Janellen Green at (850) 561-5751. You should refer to the title or item number and the date of publication (2/15/14).

Bottom line: If approved by the BOG and implemented by the Florida Supreme Court, these rule revisions would clarify issues related to confidentiality when a lawyer leaves a law firm and/or the law firm is purchased, prevent lawyers who place funds into a trust account to reduce shortages from being charged with commingling, clarify the nature of a non-refundable fee, and provide definitions for retainers, flat fees, and advance fees.

Be careful out there!

Disclaimer: this Ethics Alert is not an advertisement and is for informational purposes only. It 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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Illinois discipline board recommends 90 day suspension for revealing confidential information in court, failing to communicate plea offers, and disrupting the tribunal

Hello and welcome to this Ethics Alert blog which will update my 7/30/13 Ethics Alert blog and will discuss the January 24, 2014 Report and Recommendation by the Illinois Attorney Registration and Disciplinary Commission upholding a Hearing Board recommendation that a lawyer receive a 90 day suspension for failing to communicate plea offers, disrupting the tribunal, and revealing confidential information on multiple occasions in public court hearings.  The case is In re Theresa Cesar Garza, Commission No. 2012PR00035 (1/24/14).  The Report and Recommendation is attached and is here http://www.iardc.org/HB_RB_Disp_Html.asp?id=11250.

According to the Report and Recommendation, the lawyer was an assistant public defender with the Cook County Public Defender’s Office.  She failed to communicate plea offers to 3 clients and she revealed inculpatory client confidential information in open court on 3 separate occasions without the clients’ permission, including admissions of her client’s guilt and presence at the crime scene, all of which had been made to her in private conferences and meetings with clients.

In separate incident, the lawyer was appointed on May 18, 2011 to represent a client (Boyd) who had been charged with theft whose trial was scheduled for that day.  The client client’s previous (private) lawyer said that he had not received photo lineups and stated that a video the prosecutor provided did not play. The judge told the client that he would give her a short continuance to obtain another attorney and told her to talk to the lawyer.  The lawyer met with the client and later appeared before the judge.  After a discussion regarding when the prosecutor could produce the requested video, the lawyer said, “If the court wishes for me to go (to trial) today, show me the video, and then I would go today.”  The judge stated that he would pass the case for trial to allow her to view the video.

The client apparently told the lawyer that she needed to leave to pick up a child from school that day and she would then return to the courtroom.  When case was later called for trial, the client was not there.  The lawyer said that the prosecutor was just then showing her the video and that the client had  left to pick up her child. The judge said that the case was set for trial and that he would issue a warrant for the client’s arrest.  The lawyer then said “Oh shit” and, when the judge asked her what she said, she stated “Oh shoot” and said it was her fault that the client was not present. The judge then issued the arrest warrant.

In another incident before the same judge, the lawyer was representing a client (Poole) and the judge set bond at $1,000.00.  The lawyer asked the judge to reconsider the bond amount and the judge denied the request.  The lawyer then offered to post the client’s bond although the Illinois Code of Criminal Procedure prohibits lawyers from paying for bail.  The judge advised the lawyer that he thought it would be unethical for her to post the bond and continued the case for a hearing on May 25, 2011.  The lawyer then requested that the client be brought back to court the following day and, after the judge denied her request, she replied, “Oh, that’s lovely.

In yet another incident before the same judge, the lawyer appeared on behalf of another client (Rivera), who she was appointed to represent on June 2, 2011.  She requested a reduction of the bond and, after her request was denied, she raised her voice.  When the judge told her that he had not lost his hearing, the lawyer continued to argue with a raised voice.  The judge then stated, “Let me just indicate again, you are yelling on the record. This happens all the time when you don’t get your way.  Because you lose something doesn’t mean you have to  start yelling at me.”  Following this incident, the lawyer was removed from her assignment and put on office duty.  In late July 2011, the Cook County Public Defender’s Office terminated the lawyer’s employment.

According to the Report, the lawyer represented herself in the discipline proceedings and testified in a rambling narrative.  She did not testify about her current practice, but did mention that she had some personal difficulties at the  time of her misconduct.  She said that her mother had recently passed away and she was still reeling from her death. She also said that her birthday was May 10, which was the day before her initial misconduct and that her birthday reminded her of her mother. She also tried to explain her conduct by saying that she was working  in a “hostile environment.”  The lawyer also offered the  testimony of Steven Shobat and he Hesaid that he met the lawyer when they were both at the  U.S. Attorney’s Office and the lawyer was a mentor to him.  He testified that she had a reputation as an ethical and honest attorney, they went into private practice together in 1994 and the partnership lasted about eighteen months, and the lawyer is “passionate” about her clients.

Bottom line:  This appears to be another example of an assistant public defender who was overwhelmed by her workload and/or her personal life and acted overly “passionate” on behalf of her clients.  If it is upheld, the 90 day suspension recommendation also appears to be relatively light for the cited misconduct…

Let’s be careful out there!

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

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Illinois lawyer stipulates to a public reprimand for, inter alia, violating client confidences in her response to an unfavorable client review on AVVO

Hello and welcome to this Ethics Alert blog which will update my 9/9/13 blog and will discuss the January 15, 2014 Joint Stipulation between an Illinois lawyer and the Illinois Attorney Registration and Disciplinary Commission wherein the lawyer admitted to, inter alia, violating a client’s confidences when she posted a response to a client’s allegedly false AVVO post which went beyond what was necessary to defend herself.  The case is In the Matter of Betty Tsamis,Commission No. 2013PR00095 (1/15/14).  The Joint Stipulation is at http://www.iardc.org/HB_RB_Disp_Html.asp?id=11221.

The Joint Stipulation states that the following facts would be established regarding the allegations that the lawyer revealed client confidences in responding to the AVVO post:

“On September 6, 2012, Respondent agreed to represent Richard Rinehart (“Rinehart”) in matters related to Rinehart’s securing unemployment benefits from his former employer, American Airlines. American Airlines had terminated Rinehart’s employment as a flight attendant because Rinehart allegedly assaulted a fellow flight attendant during a flight. Rinehart paid Respondent $1,500 towards her fee.

Between September 6, 2012 and January 16, 2013, Respondent met with Rinehart on at least two occasions and obtained information from Rinehart concerning both his employment history at American Airlines and the alleged incident involving the other flight attendant. Respondent also reviewed Rinehart’s personnel file, which she had obtained from American Airlines.

On January 16, 2013, Respondent represented Rinehart at a telephonic hearing before the Illinois Department of Employment Security (“IDES”), at the conclusion of which the IDES determined to deny Rinehart unemployment benefits. Shortly thereafter, Rinehart terminated Respondent’s representation of him.  On or about February 5, 2013, Rinehart posted a client review of Respondent’s services on the legal referral website AVVO, in which he discussed his dissatisfaction with Respondent’s services.

On February 7, 2013 and February 8, 2013, Respondent contacted Rinehart by email and requested that Rinehart remove the February 5, 2013 posting about her from the AVVO website. Rinehart responded that he refused to remove the posting unless he received a copy of his files and a full refund of the $1,500 he had paid Respondent as fees.  Sometime between February 5, 2013 and April 10, 2013, AVVO removed Rinehart’s posting from its online client reviews of Respondent.

On April 10, 2013, Rinehart posted a second negative client review of Respondent on AVVO. Respondent replied to his post and revealed confidential information about his case. Respondent’s reply to Rinehart’s second posting contained information relating to her representation of Rinehart and exceeded what was necessary to respond to Rinehart’s accusations. (bold added).

Factors in mitigation.  Respondent was admitted to practice law in Illinois on May 4, 2006 and practices in Chicago where she concentrates her practice in the area of employment and civil rights law. Respondent has no prior disciplinary history. Respondent understands the seriousness of her misconduct and has expressed remorse for it. She has taken steps to more carefully manage her recordkeeping in order to minimize the likelihood of future errors involving her client fund account, so that future overdrafts do not occur. Those steps include reviewing client ledgers and settlement statements with greater detail before issuing checks, and ensuring that she deposits money into the client trust account to account for credit card fees.  If this matter proceeded to a hearing, several lawyers and clients would have testified to Respondent’s excellent reputation for truth and veracity.  The Administrator and Respondent agree and jointly recommend that a reprimand be administered by the Hearing Board pursuant to Supreme Court Rule 770(h) and Commission.”

Bottom line:  As I previously stated, all communication via digital media is a potential minefield, which this case clearly illustrates.  Although lawyers are generally permitted to reveal confidences to defend allegations by clients against them and it appears that the lawyer was justified in her frustration with the (former) client, she agreed in the stipulation that she went too far by revealing confidential information that went beyond the information necessary to defend herself against the allegedly false statements made by the client in the AVVO post and she agreed to a public reprimand.

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

www.jac-law.com

 

 

 

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Nebraska Supreme Court imposes indefinite suspension on lawyer who contacted the criminal prosecutor after she was fired to “ensure the client’s conviction.”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Nebraska Supreme Court imposing an indefinite suspension on a lawyer who failed to respond to charges that she “disclos(ed) confidential information regarding criminal charges against a former client in order to ensure the client’s conviction.”  The opinion is State of Nebraska ex rel. Counsel for Discipline v. Donna J. Tonderum, SC-13-083, 286 Neb. 942 (November 22, 2013).  The disciplinary opinion is at: http://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-083.pdf

According to the opinion, the lawyer was retained to defend a client charged with criminal first degree sexual assault.  The client and his family subsequently hired another attorney and terminated her representation.  The lawyer then contacted the criminal prosecutor to discuss the case also “stated that she no longer represented her former client because he had rejected her advice and hired the other attorney.  (She) stated that she “hated” the other attorney, that she knew her former client was guilty, and that she wanted to make sure the prosecutor sent (her) former client to prison.

The lawyer gave the prosecutor the names of witnesses related to the former client’s case, stated what their testimony would be, provided contact information for some witnesses, and informed the prosecutor of the expected the defense strategy.  Not surprisingly, the criminal prosecutor called disciplinary counsel and advised the new lawyer for the defendant.

The opinion states that, “(the lawyer’s) failure to respond to the formal charges filed by (disciplinary counsel) is also troublesome. We consider an attorney’s fail­ure to respond to inquiries and requests for information from (disciplinary counsel)  as an important matter and as a threat to the credibility of attorney disciplinary proceedings.  As noted, (the lawyer’s) failure to file an answer to the formal charges leaves us with­out any record of mitigating factors, other than her previous record of no violations, and no way to assess her fitness to practice law.

The court declined to disbar the attorney, notwithstanding her failure to respond to the charges.  “(U)nder the facts of this case, we conclude that an indefinite suspen­sion, with a minimum suspension of 3 years, is the appropri­ate discipline.

Bottom line:  This case is bizarre, to say the least. According to the disciplinary Complaint (which the lawyer did not respond to or rebut), the lawyer was fired from representing the client in the criminal case and, since she was fired and “hated” the successor lawyer, she was willing to breach her client’s confidences in order to “make sure” the former client went to prison.  It is also surprising that the court did not disbar the lawyer, especially in light of her failure to respond to the disciplinary charges.

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

www.jac-law.com

 

 

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Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, Confidentiality and privilege, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer discipline, lawyer discipline for failure to respond to complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Illinois lawyer charged in disciplinary complaint with violating client confidences in response to unfavorable client review on AVVO

Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary complaint filed by the Illinois Attorney Registration and Disciplinary Commission against an Illinois lawyer who, inter alia, allegedly violated her client’s confidences when she posted a response to a client’s allegedly false AVVO post.  The case is In the Matter of Betty Tsamis, No. 6288664, Commission No. 2013PR00095 (August 26, 2013).  The disciplinary complaint is at http://www.iardc.org/13PR0095CM.html.

The disciplinary complaint has two counts.  Count I alleges that the lawyer converted $2,057.54 from the settlement proceeds of a client named Kris Klimek and Count II alleges that the lawyer violated her duty of confidentiality to another client named Richard Rinehart by revealing confidential information in responding to a client’s unfavorable review on AVVO.

According to Count I of the complaint, “(o)n or about September 6, 2012, (the lawyer) agreed to represent Richard Rinehart (“Rinehart”) in matters related to Rinehart’s securing unemployment benefits from his former employer, American Airlines. Shortly before hiring (the lawyer), American Airlines had terminated Rinehart’s employment as a flight attendant because Rinehart allegedly assaulted a fellow flight attendant during a flight. At that time, Rinehart paid (the lawyer) $1,500 towards her fee.”

“Between September 6, 2012 and January 16, 2013, (the lawyer) met with Rinehart on at least two occasions and obtained information from Rinehart concerning his employment history at American Airlines and information concerning the alleged incident involving the other flight attendant. (The lawyer) also reviewed Rinehart’s personnel file, which she had obtained from American Airlines.  On or about January 16, 2013, (the lawyer) represented Rinehart at a telephonic hearing before the Illinois Department of Employment Security (“IDES”), which resulted in the IDES denying Rinehart unemployment benefits. Shortly thereafter, Rinehart terminated (the lawyer’s) representation of him. “

“On or about February 5, 2013, Rinehart posted a client review of (the lawyer’s) services on the legal referral website AVVO, in which he discussed his dissatisfaction with (the lawyer’s)  services. Rinehart stated in the posting that ‘She only wants your money, claims ‘always on your side’ is a huge lie.  Paid her to help me secure unemployment, she took my money knowing full well a certain law in Illinois would not let me collect unemployment. [N]ow is billing me for an additional $1500 for her time.’  Between February 7, 2013 and February 8, 2013, (the lawyer) contacted Rinehart by email and requested that Rinehart remove the February 5, 2013 posting about her on AVVO. Rinehart responded that he refused to remove the posting unless he received a copy of his files and a full refund of the $1,500 he had paid.”

“Sometime between February 5, 2013 and April 10, 2013, AVVO removed Rinehart’s posting from its online client reviews of (the lawyer).  On or about April 10, 2013, Rinehart posted a second client review of (the lawyer) on AVVO. In the April 10, 2013 posting, Rinehart stated that ‘I paid Ms. Tsamis $1500 to help me secure unemployment while she knew full well that a law in Illinois would prevent me from obtaining unemployment benefits.'”

“On or about April 11, 2013, (the lawyer) posted a reply to Rinehart’s April 10, 2013 client review. In that reply (the lawyer) stated that:  ‘This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.'”

By stating in her April 11, 2013 AVVO posting that Rinehart beat up a female coworker, (the lawyer) revealed information that she had obtained from Rinehart about the termination of his employment. (The lawyer’s) statements in the posting were designed to intimidate and embarrass Rinehart and to keep him from posting additional information about her on the AVVO website.”

Bottom line:  As I previously stated, all communication via digital media is a potential minefield, which this case illustrates.  Although lawyers are generally permitted to reveal confidences to defend allegations by clients against them, and it appears that the lawyer was justified in her frustration with the (former) client, she may have gone too far by revealing confidential information that went beyond the information necessary to defend herself against the allegedly false statements made by the client in the AVVO post.  We will see…

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

www.jac-law.com

 

 

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Illinois Hearing Board recommends 90 day suspension for former Assistant Public Defender for multiple rule violations, including conduct that disrupted the court

Hello and welcome to this Ethics Alert blog which will discuss the recent Report and Recommendation of the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission recommending a 90 day suspension for an Illinois Assistant Public Defender for various Bar Rule violations, including failing to communicate plea offers to clients, revealing confidential information which prejudiced her clients’ interest, offering to post bond for a client, making false statements in a court proceeding, and engaging in conduct that disrupted court proceedings.  The case is: In the Matter of: Therese Cesar Garza, No. 6180720 Commission No. 2012PR00035 (July 24, 2013).  The Report can be accessed online here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11014.

According to the Report, during the time that the conduct occurred, the lawyer was employed by the Cook County Public Defender’s Office as an Assistant Public Defender.  The 8 count disciplinary Complaint alleged that she failed to communicate plea offers to several  clients, revealed confidential information which was prejudicial to her clients’ interest, offered to post bond for a client, made false statements in a court proceeding, and engaged in conduct that disrupted court proceedings.  The lawyer initially failed to participate in the disciplinary proceedings for the stated reason that she was ill and the facts and rule violations alleged in the Complaint were deemed admitted; however, she later appeared at a hearing and presented some evidence in mitigation.  Some examples of the lawyer’s conduct as found in the Report are as follows:      

On May 18, 2011, the lawyer was appointed to represent defendant Gabriel Franco.  Before the May 18 hearing, the lawyer and the defendant had a conversation regarding the alleged offense and the surrounding circumstances.  At the May 18 hearing, the judge addressed the issue of probable cause to detain Mr. Franco in order to set the bond.  The prosecutor informed the judge of the defendant’s criminal history and that he had an outstanding warrant and the lawyer then stated the following:

MS. CESAR:    Your Honor, he lives with his parents. And it is my understanding that there’s a warrant and it is for retail theft.  (The defendant) did tell me that he is not working right now and he was stealing formula for his eight-month-old child.  I know that that is not a defense, but it certainly is a mitigator. (italics added).

On May 18, 2011, the lawyer was appointed to represent defendant Monica Boyd, who was charged with misdemeanor theft.  The lawyer and defendant appeared before the judge and the case was set for trial later that same day; however, when the case was called for trial, the defendant was not present.  The lawyer stated that the defendant had left the courthouse to pick up her child.  Since the defendant was not present for the trial, the judge issued a warrant for her arrest and the following exchange occurred between the lawyer and the judge.

MS. CESAR:      Oh s–t.

THE COURT:     What did you say, Ms. Cesar?

MS. CESAR:      Oh shoot, I said. Oh shoot. I’m sorry I didn’t talk  to her, Judge. I’m just – – it’s my fault. I’m running around, talking to people.

THE COURT:     I don’t think that’s what you said.

MS. CESAR:     Whatever. I know the word you think I said. My  mother never let me say that, and I’ll tell you why. But I said shoot, darn it.

On June 7, 2011, the lawyer appeared before the judge on behalf of defendant Tony Rivera.  She requested a reduction of Mr. Rivera’s bond arguing that a witness would appear later and present testimony in favor of a bond reduction.  After hearing the lawyer’s argument, the judge denied the lawyer’s request to present the witness’ testimony and to reduce the bond.  The lawyer then stated:

MS. CESAR:    If I could correct the record, I told the Court at about 11:00 o’clock I had trouble getting people.

And when I finally got through, I talked to [the witness]. He said he was going to try to come.

THE COURT:   Excuse me. I did not lose my hearing.

MS. CESAR:    I did not say he was on the way. He indicated that he would come.

             THE COURT:   Let me just indicate again, you are yelling on the record. This happens all the time when you don’t get your way (italics added).

In June 2011, the lawyer was removed from her courtroom assignment with the Cook County Public Defender’s Office and placed on office duty.  On July 29, 2011, the lawyer was terminated from the Public Defender’s office.

The Report states that the lawyer completed her undergraduate studies and law school while raising six young children. She was admitted to practice in both Illinois and Indiana and began working for the Lake County Indiana Prosecutor’s Office in 1981.  She began working for the United States Department of Justice 3 years later doing civil rights work and subsequently worked for the U.S. Attorney’s Office in Chicago.  She went into private practice 1995 and began working for the Cook County Public  Defender’s Office in 2004.  During the time of the conduct alleged in the disciplinary complaint, the lawyer stated that was also grieving the loss of her mother and was newly assigned to the courtroom and was feeling overwhelmed and she did nothing for her own personal gain.

Bottom line:   This appears to be an example of an overworked assistant public defender who made some serious errors and engaged in conduct that was disrespectful and disruptive to the court and harmful to her clients.  If the recommendation is upheld, the 90 day suspension seems to be a relatively minimal discipline as a sanction for this lawyer’s conduct.                  

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

www.jac-law.com

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Illinois Hearing Board recommends 5 month suspension for lawyer who posted undercover video related to client on Youtube and alleged that the drugs were planted

Hello and welcome to this Ethics Alert blog which will discuss the recent report and recommendation of an Illinois disciplinary hearing board that an Illinois lawyer be suspended for 5 months for posting an undercover video of an alleged drug transaction of his client on Youtube and alleged that the drugs were planted.  The disciplinary case is In re Jesse Raymond Gilsdorf, Commission No. 2012PR00006 (June 4, 2013).  The disciplinary Complaint is here: https://www.iardc.org/12PR0006CM.html and the Board’s Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10978.    

According to the Report and Recommendation, “the charges of misconduct arose out of  the Respondent knowingly posting on an Internet site, and showing to others, a DVD video he received from the state’s attorney while representing a criminal  defendant.  The video showed the undercover drug transaction between Respondent’s  client and a confidential police source.  The Respondent entitled the video ‘Cops and Task Force Planting Drugs,’ which was false.  By posting the video while his client’s criminal case was pending, Respondent intended to persuade residents of the county that the police or other government officials acted improperly in the prosecution of his client.

The Hearing Board found that the Respondent engaged in the misconduct charged in both counts.  Specifically, he revealed information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation; failed to reasonably consult with the client about the  means by which the client’s objectives are to be accomplished); made extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding; engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.”

The report and recommendation of the hearing board will now be considered by the Illinois disciplinary review board and will ultimately be reviewed by the Illinois Supreme Court for a final disciplinary opinion.

Bottom line: This is another example of the use (or misuse) of social media potentially resulting in a lawyer’s discipline.  Lawyers must be aware of the requirement of maintaining client confidentiality and the risk of making statements that are false about a client’s case as well as the inherent dangers of using social media in the lawyer’s practice.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me. 

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

www.jac-law.com

 

 

 

 

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Florida Bar’s Professional Ethics Committee will consider approval of Proposed Advisory Opinion 12-3 on cloud computing ethics at its meeting on June 28, 2013

Hello and welcome to this Ethics Alert blog with an update on the status of The Florida Bar’s Proposed  Advisory Opinion 12-3 on the ethics of cloud computing and protecting client confidences when lawyers want to store records in the digital “cloud” using third party vendors.  The Florida Bar’s Professional Ethics Committee (PEC) will consider approval of the proposed opinion at its June 28, 2013 meeting in Boca Raton in conjunction with The Florida Bar’s annual convention.  The proposed advisory opinion is also on the Bar’s website at: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/186D086CDDCBF92F85257B01007A5091/$FILE/12-03%20PAO.pdf?OpenElement

The opinion concludes that storing client confidential information and documents in the “cloud” is ethical with several important caveats.  “This Committee (PEC) agrees with the opinions issued by the states that have addressed the issue. Cloud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it. As indicated by other states that have addressed the issue, lawyers must perform due diligence in researching the outside service provider(s) to ensure that adequate safeguards exist to protect information stored by the service provider(s).  New York State Bar Ethics Opinion 842 suggests the following steps involve the appropriate due diligence:

 

Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;

 

Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;

 

Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.”

If proposed advisory opinion 12-3 is approved by the PEC, Florida will join at least 11 other states which have issued ethics opinions finding that cloud computing is ethical and providing guidelines for its use.  As I also previously advised, Florida Bar Advisory Ethics Opinion 10-2 also provides guidance to lawyers to insure that confidential client information on the hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.

Bottom line:  After ethics advisory opinion 12-3 is finalized, it will provide Florida lawyers with more specific guidance on the ethics of cloud computing.

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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

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