Georgia Supreme Court disbars lawyer who missed statutory filing deadline and created a false email and text to cover it up

Hello everyone and welcome to this Ethics Alert which will discuss the recent Georgia Supreme Court opinion disbarring a lawyer who missed statutory filing deadline and falsified email to cover it up.  The case is In the Matter of Andrea Jo Anne David-Vega,  Case No: S24Y0099 and the opinion is here: https://www.gasupreme.us/wp-content/uploads/2024/03/s24y0099.pdf   

According to the opinion, the lawyer falsified an email to make it appear that her personal injury client fired her before she missed the deadline to file the lawsuit.  The lawyer submitted the false email in her disciplinary case and in a malpractice lawsuit filed against her by the client. The false email was in a different font and format and used better diction, capitalization, and punctuation. The lawyer also falsified a text message and submitted it as evidence in the malpractice lawsuit.

The disciplinary allegations against the lawyer were deemed to be admitted because she failed to file a timely answer to the complaint filed by the State Bar of Georgia: however, she was permitted to submit evidence of mitigating circumstances at a sanctions hearing. 

The lawyer admitted creating the email and text to make it appear that her client had fired her before the statute of limitations had expired.  The lawyer’s counsel stated that she lawyer had expanded her caseload in 2016 by becoming a special assistant attorney general representing the Georgia Division of Family & Children Services and acquired 200 cases in Gwinnett County, Georgia, and 150 cases in a neighboring county; however, she continued her own general practice. 

The opinion states: “(The lawyer) became overwhelmed with her caseload but continued to take cases because she ‘did not know how to say no’ and felt unable to ask for help.”  A counselor testified that the lawyer also helped with care for her mother and stepfather, who had become ill. She eventually “reached a point where she completely unplugged”.  The lawyer had no prior discipline and expressed remorse for her actions, and she also had an excellent reputation with the judges before whom she appeared.

The lawyer’s client testified in aggravation that he suffered permanent injuries to his eye, neck, head, back and brain in the auto accident for which he sought to file a lawsuit, he had debt collectors calling, and the lawyer failed to provide his medical records that she was provided.  The client also testified there was no written contingency agreement, and the lawyer contacted the liability insurer but then stopped communicating with the insurer.  The lawyer also failed to respond to the client’s questions, even though he called her office over 65 times between January 2019 and February 2020 to ask about the status of his case and he continued to text and email her through April 2020.

The client told the lawyer that he was terminating her in May 2020 and the deadline for filing a lawsuit had passed in August 2018. The lawyer falsely asserted that the complainant had terminated her in March 2018.  The client’s lawyer in the malpractice lawsuit also testified that the lawyer lied and failed to cooperate in the malpractice case, and that settlement negotiations had been ongoing for two years.  A special master had recommended the lawyer be suspended for two years.

Bottom line:  This lawyer attempted to cover up her negligence and misconduct by creating false evidence in the form of a fabricated email and text message and presented the false evidence in both the Bar proceedings and the legal malpractice action.  As people have said, “it is not always the crime, but the cover up”.  The Georgia Supreme Court imposed the most severe sanction of disbarment.

Be careful out there (and of course do not do this).

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Florida Bar’s Board of Governors votes to approve removal of the word “zealous” and its derivatives from the Florida Bar Rules

The Board of Governors (BOG) voted at its December 2023 meeting, to approve a Real Property, Probate, and Trust Law Section proposal to remove the words zealous, and its derivatives from the Florida Bar Rules. The proposed amendments would remove the words words from the Preamble to Chapter 4 and the comment to Rule 4-1.3 and add a comment that provides an explanation and historical perspective.

The proposed amendments would remove a sentence in the Preamble stating “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and substitute “As an advocate, a lawyer asserts the client’s position with commitment and dedication to the interests of the client under the rules of the adversary system.”  Another sentence in the Preamble: “Zealous advocacy is not inconsistent with justice,” would be changed to “Commitment and dedication in advocacy are not inconsistent with justice.”

A sentence in the comment to Rule 4-1.3 (Diligence), “A lawyer must also act with commitment and dedication to the interests of the client and with zeal and advocacy on the client’s behalf,” would be changed to “A lawyer must also act with commitment and dedication to the interests of the client.”

A proposed new comment would be placed in the Preamble under the subheading “Conduct” and state “All prior references to this chapter to a lawyer’s duty to act zealously, as a zealous advocate, or with zeal upon the client’s behalf have been removed. Zealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior.” The comment would also refer to a 2000 Supreme Court decision, The Florida Bar v. Buckle, which states, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

The board approved the Florida Bar rule proposed revisions,24-9 and they will now be filed with the Florida Supreme Court for review and potential implementation.

Bottom line: If the proposed revisions are approved by the Florida Supreme Court, Florida lawyers will be put on notice that unethical conduct under the guise of “zealousness” is a potential violation of the Florida Bar Rules.

Be careful out there.

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

New Jersey lawyer suspended for charging excessive and false fees to clients and claimed that everyone did it

Hello everyone and welcome to this Ethics Alert which will discuss the November 8, 2023 New Jersey Supreme Court opinion imposing a one year suspension on a lawyer for charging inflated and false fees to clients.  The case is In the Matter of Marcy E. Gendel, No. D-68-088158 (November 8, 2023). The New Jersey Supreme Court opinion is here:  https://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1171364 and the report of the New Jersey Disciplinary Review Board is here:  https://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1166042. 

According to the NJ Disciplinary Review Board report, an audit found that the lawyer overcharged clients and made false statements on applications for Superstorm Sandy aid claiming that a badly damaged property was her primary residence. The audit found that she overcharged clients in real estate transactions by collecting fake fees or fee amounts that were higher than the actual expenses incurred.

The audit also found that the lawyer overcharged her clients for government recording fees, land survey fees and title insurance fees and collected and retained fees that she never incurred for bank and overnight fees in real estate closings.  In 138 real estate transactions from 2011 to 2015, the lawyer was found to have overcharged her clients nearly $67,000.00.  The report states:  “For at least seven years”, the lawyer “engaged in a carefully constructed scheme to bleed clients of funds to which she was not entitled.”

The report states that the audit was ordered after the lawyer “blurted out” during a real estate closing that she had found a way to take money from clients, and she was surprised that no one else had thought of it. She said senior citizen clients could be charged realty transfer fees without a discount that was applied, and the lawyer could then pay the reduced fee and keep the difference. She estimated that this could allow an attorney to keep an extra $50,000.00 to $100,000.00 per year.  The lawyer made the comment at a closing in front of her client, the listing realtor, and another lawyer, who was on the local Bar ethics committee. The lawyer then sent a letter to the New Jersey Office of Attorney Ethics about the conversation.

The audit showed that the lawyer did not implement the plan that she described lawyer and she claimed that she made the comment to express frustration that each county in New Jersey had its own system for recording property deeds, which would make it easy for people to steal for years without detection and that she was making the point that a new e-recording system would provide more checks and balances. 

After a hearing before the New Jersey Office of Attorney Ethics, the lawyer began reimbursing her client and she told that agency that she began estimating recording fees when the exact amount was unknown before a Housing and Urban Development statement was prepared. 

The lawyer said that she began charging a flat amount to record deeds because she saw that everyone else was doing it, and it made her bookkeeping process simpler. She also said her bank fee charges charge reflected the time spent at the bank and the excessive land survey fees were intended to reimburse the time that she spent reviewing the documents.  The lawyer also said that she was unaware of the New Jersey Supreme Court’s 2016 decision in In re Fortunato, in which the New Jersey Supreme Court ordered a lawyer to return excess recording costs that he had charged to clients in closings. 

The disciplinary review board found that the lawyer’s misconduct was “far more egregious than that of the attorneys in Fortunato and its progeny because she overcharged clients for services that were clearly known ahead of a property’s closing.”   The report further found that the lawyer “systematically inflated multiple charges and retained the differences for herself.”  She “took no responsibility for her actions and instead insisted she engaged in the misconduct because everyone else was doing it.”

The New Jersey Supreme Court Order suspended the lawyer for one year and until further order of the court.

Bottom line:  The lawyer was found to have engaged in a large amount of serious misconduct in this case, including charging excessive fees and costs; however, she surprisingly received only a one-year suspension.  That may or would not have happened if the lawyer practiced in Florida (or other jurisdictions).

Be careful out there.

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Proposed Florida Bar Rule would prohibit lawyers from threatening licensed professionals with an administrative complaint

Hello everyone and welcome to this Ethics Alert which will discuss the recent proposed Florida Bar Rule which would prohibit Florida lawyers from threatening a licensed professional with an administrative complaint solely to gain an advantage in a civil matter.

Florida Bar Rule 4-3.4 (g) states that an attorney must not “present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter” and Rule 4-3.4 (h) states that an attorney must not “present, participate in presenting, or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.”  The Florida Bar Rules do not prohibit lawyers from threatening a licensed professional with an administrative complaint solely to gain an advantage in a civil matter. 

At the recent meeting of the Florida Bar Board of Governors (BOG), the Chair of the Board Review Committee on Professional Ethics reported that the committee had voted 5-2 in favor of proposed Bar rule amendments that would address this issue.

Proposed amendment to Florida Bar Rule 4-3.4 (Fairness to Opposing Party and Counsel) would add subdivision a 4-3.4(i) stating that a lawyer must not “present, participate in presenting, or threaten to present administrative charges solely to gain an advantage in a civil matter.”

Proposed amendment to Rule 4-4.4 (Respect for the Rights of a Third Person) would add language to subdivision (a) stating inter alia, a lawyer may not use “means that have no substantial purpose” to embarrass, delay, or burden a third person and those means include, but are not limited to, “a lawyer threatening that the lawyer, the lawyer’s client, or a third party will make false extrajudicial statements to be disseminated by means of social media or other public communication intended to impugn another person or entity if the lawyer knows or reasonably should know that the statements are false.”

Bottom line:  The proposed Bar Rule amendments would address and prohibit a lawyer from making threats to a licensed professional to file an administrative complaint solely to gain an advantage in a civil matter in a separate rule.  The proposed amendments will now be sent to the BOG Rules Committee for further review.

Be careful out there!

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Connecticut lawyer faces disciplinary charges after firm network administrator allegedly accessed departing employee’s personal emails

Hello everyone.  Happy 2023 and welcome to this Ethics Alert which will discuss the recent disciplinary charges against a Connecticut lawyer whose firm network administrator allegedly improperly accessed a departing associate’s personal emails, among other charges.  The Connecticut Office of Disciplinary Counsel’s Presentment is here:  https://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=24296594   

According to the Presentment, in February 2021, the lawyer ordered his network administrator to improperly access the office computer of a departing associate to find his communications with the new law firm which hired him. The network administrator “retrieved, copied and downloaded personal emails” from the associate’s personal gmail account.  The emails were downloaded onto the law firm’s server.

A lawyer from the associate’s new law firm contacted the lawyer to determine whether he wanted to send a joint letter to the clients. The lawyer is alleged to have responded with an email stating that the clients belonged to his firm and “I will say in unambiguous terms that should you proceed in this manner, we will not hesitate to sue Alex personally and your firm, as well as file grievances. If you act on your email and participate, we will include you and your firm in those grievances and lawsuits … By virtue of your email, you have in essence admitted to conspiring to commit a crime and exposed yourself and Alex to civil damages and potential criminal liability … Again, the clients are my firm’s, not Alex’s. DO NOT CONTACT THEM IN ANY MANNER.”

The Presentment alleges, inter alia, that the lawyer committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, used methods of obtaining evidence that violated the lawyer’s legal rights, engaged in improper solicitation, and engaged in conduct prejudicial to the administration of justice..

The Presentment requests that the Superior Court issue an appropriate order of discipline.  The lawyer executed an Admission of Misconduct acknowledging violation of certain rules listed in the probable cause findings but disputing some of the facts and rules.  The lawyer agreed to the submission of the matter to the Superior Court for review and that if the Admission is rejected by the Superior Court, the matter would be referred to a different judge for further proceedings.

Bottom line: This lawyer is alleged to have, inter alia, ordered his network administrator to improperly access a departing lawyer’s personal email account and committed a criminal act that reflected adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, used methods of obtaining evidence that violated the lawyer’s legal rights, engaged in improper solicitation, and engaged in conduct prejudicial to the administration of justice.  He partially admitted to misconduct and the court will determine whether the admission will be accepted and, if so, what discipline will be imposed.

Be careful out there.

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

West Virginia lawyer’s license is annulled and suspended for, inter alia, billing over 24 hours multiple times

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent West Virginia Supreme Court of Appeals opinion annulling the license of a lawyer who admitted that he billed more than 24 hours in a day multiple times while representing indigent clients. The lawyer was also suspended for 3 years for overbilling the West Virginia Public Defenders Services Corporation and ordered to pay restitution in a separate case.  The opinion is here:  http://www.courtswv.gov/supreme-court/docs/fall2022/20-1027%20and%2022-0342-armstead-p.pdf 

The lawyer admitted that he charged more than 24 hours four different days and charged 15 hours or more on for an additional 11 days. He also admitted to allegations in a separate count that he charged more than 24 hours per day on three different days and 15 hours or more each day for an additional 25 days. 

The lawyer also admitted that he failed to communicate the scope of his representation and the basis of his fee with one client; however, he did not admit to an allegation that he failed to file a divorce case for another client who paid him more than $3,225.00 and claimed that the failure to file was due to the client’s indecision.

The suspension was imposed based upon allegations that the lawyer overbilled the Public Defender Services Corporation and the Supreme Court ordered the lawyer to allow the agency to withhold more than $58,000.00 in unpaid vouchers as restitution for prior overpayments and to refund $3,225.00 to the divorce client.

Bottom line: This lawyer’s license was annulled, and he was separately suspended for 3 years for egregious overbilling of both clients and a governmental agency and was ordered to pay restitution to the agency and the client.

Be careful out there.

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

California lawyer sentenced to prison for wire fraud for lying to clients about winning cases and forging court documents and judges signatures

Hello everyone and welcome to this Ethics Alert which will discuss the recent sentencing of a California lawyer to 37 months in prison and $254,354.00 in restitution after he pled guilty to wire fraud for lying to clients about winning cases, creating false court documents, and forging judges’ signatures.  The case is United States of America v. Matthew Charles Elstein, Case No. CR 2:21-cr-00494-MCS.  The lawyer was sentenced on October 4, 2022, and the U.S Department of Justice press release on the conviction is here:  https://www.justice.gov/usao-cdca/pr/former-lawyer-sentenced-more-3-years-prison-conning-clients-sham-court-documents.  A Reuters article from October 21, 2021 regarding the underlying charges and the lawyer’s guilty plea is here:  https://www.reuters.com/legal/government/lawyer-accused-faking-judges-signatures-admits-wire-fraud-2021-10-21/.  

The lawyer’s October 20, 2021 plea agreement is here: https://fingfx.thomsonreuters.com/gfx/legaldocs/akvezajnlpr/Matt%20Elstein%20plea%20agreement.pdf.  According to the plea agreement, in one matter, the lawyer informed a corporate client in June 2016 that he had won a $52,000,000.00 default judgment and sent the client a false court order which included the forged signature of a U.S. Northern District of California District Judge. 

The lawyer falsely told the client that the case was not on the court docket because the Department of Justice was investigating the defendant and it was sealed.  He also presented the client with a forged settlement agreement in which the client would receive money from a “court of claims recovery fund” established by the government. The client discovered the elaborate sham after contacting the U.S. attorney’s office to confirm the settlement.

In another matter, the lawyer staged bogus depositions in a federal case in Washington in September 2015.  He hired a court reporter for the staged depositions and made a record of nonappearance when no one appeared. The clients traveled to Seattle to attend the depositions and the lawyer billed the clients for his travel expenses.  The lawyer also claimed that he obtained a $4,250,000.00 judgment for a client and provided a forged court order with the forged signature of U.S. Western District of Washington District Judge James L. Robart.  The client discovered that sham after traveling to Washington to collect the nonexistent judgment.

Bottom line:   The lawyer’s actions in this matter in lying to clients, creating false and forged documents, and staging a bogus deposition and charging the client for the time and expenses are more elaborate than any sham lawyer conduct that I have seen in the past.  A medical diagnosis might also find that it was extreme pathological behavior.  The California Bar website states that the lawyer was involuntarily made inactive and removed from practice while the felony charges were pending. The California Bar should now move forward with disbarment proceedings, or the lawyer will resign.

Be careful out there.

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Illinois Hearing Board recommends reprimand for lawyer who exclaimed “gadzooks” after being admonished by the judge and was held in contempt

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Disciplinary Commission Hearing Board recommendation of a reprimand for a lawyer who disrupted a trial, exclaimed “gadzooks” after being admonished, and was held in contempt.  The Hearing Board’s September 8, 2022 Report and Recommendation is here:  https://www.iardc.org/File/View/1539481?FileName=In%20re%20David%20C.%20Thollander%2C%20Attorney%20Number%206202012.pdf   

The lawyer was representing a client in an age discrimination lawsuit that arose out of an attempt to purchase property and he made the “gadzooks” comment during a bench trial in 2018 in Cook County, Illinois.  The judge repeatedly asked the lawyer to take a seat during opposing counsel’s question and the lawyer claimed multiple times that he was just trying to make a record.  The judge told the lawyer to take a seat and told the opposing counsel to ask a question.

The lawyer then stated:  “Your honor, I’m objecting to the court. I want to make a record as to the issue of the offer. [My client’s] complaint sought among other things enjoining the sale and having the property sold to him and the discussions and offer around the sale all pertained to settlement or partial settlement of this case.” 

The judge again asked the opposing lawyer to ask the witness a question and admonished the lawyer not to make comments “under your breath”..”  The lawyer stated:  “I said, ‘gadzooks.’”  The judge said to the lawyer “if you make one more comment that’s offensive to this court, I will hold you in contempt of court.”  The lawyer responded: “Gadzooks is offensive to the court?”  The judge then stated: “You are now in contempt of court. I’m fining you $1,000.”

The lawyer stated: “May I ask the court.”  The judge stated: “You are now (at) $2,000.00.”  The judge then increased the fine for contempt to $3,000.00 after she said the witness was confused about an exhibit and asked the lawyer to provide the number and he responded in what she considered to be a scream.

The judge later vacated the $3,000.00 contempt sanction and held a sanction hearing.  She found the lawyer in direct criminal contempt and fined him $1,000.00.  The judge found that the lawyer had refused to comply with court orders, continually muttered under his breath during the trial, interrupted the court by yelling “gadzooks,” and “behaved in other rude, hostile, and unbecoming manner.”  The Illinois appeals court affirmed the contempt judgment.

During the disciplinary hearing, the judge testified that she did not know what “gadzooks” meant; however, she considered it offensive, and it seemed to be a way for the lawyer to critique or undermine her ruling.  The lawyer testified that he did not consider “gadzooks” to be offensive and that he said it out of frustration. He also testified that he did not yell, shout or scream “gadzooks” or “25” and, when he did raise his voice, it was so his 83-year-old client could hear him.

The Report found that the lawyer improperly engaged in continuing efforts to make a record after the judge ruled on his objections and the lawyer’s “initial refusal to accept the court’s evidentiary ruling caused the court to expend time urging him to move on, precipitated a five-minute recess, and ultimately created a tense situation that culminated in the court ending the proceedings early on May 23, which caused a delay in the trial.”

The Report rejected allegations that the lawyer engaged in conduct intended to disrupt the tribunal; represented a client in a way to embarrass, delay or burden a person; or committed a criminal act reflecting adversely on his fitness as a lawyer.  The Report states:  “By no means do we excuse [the lawyer’s] misconduct, but neither do we find it particularly serious, given that it occurred on one afternoon of a four-day trial, caused no harm to the parties, and caused only a short delay in the proceedings.”  

The Report further stated:  “We also find that [the lawyer’s] misconduct is mitigated by the facts that he fully cooperated in his disciplinary proceeding, has an unblemished record in 33 years of practice, and presented impressive character testimony.”

The Report recommended that the lawyer receive a reprimand for engaging in conduct that was prejudicial to the administration of justice.

Bottom line:  According to the Report, this lawyer seems to have skated on the line of disrupting the tribunal; however, his continuing efforts to make a record were not “particularly serious” but were prejudicial to the administration of justice.  By the way, the dictionary defines “gadzooks” as “an exclamation of surprise or annoyance”.  It is probably better not to use that word in responding to a judge. 

Be careful out there.

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Florida Supreme Court issues discipline opinion reminding lawyers not to engage in “zealous advocacy” in violation of Bar Rules

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Supreme Court opinion imposing a 3-year suspension on a lawyer who altered pictures of his client’s face and used the images as exhibits at a deposition in a criminal case which the Court characterized as overzealous and a proposal by a Florida Bar committee to remove the words zeal and zealous from the Rules Regulating The Florida Bar.  The case is The Florida Bar v. Schwartz, SC17-1391 (2/17/22).   

According to the Florida Supreme Court opinion:

Schwartz, a criminal defense attorney who was admitted to the Bar in 1986, became the subject of the instant Bar proceedings based upon his use of two defense exhibits during a pretrial deposition. While representing the defendant in State v. Virgil Woodson, Circuit Case No. 13-2013-CF-012946-0001-XX (Miami-Dade County, Florida), Schwartz created the exhibits, two black and white photocopies of a police lineup. In each, Schwartz altered the defendant’s picture. In one exhibit, he replaced the defendant’s face with that of an individual whom witnesses other than the robbery victim had identified as the perpetrator. In the other exhibit, Schwartz changed the defendant’s hairstyle. However, the altered photocopies used at the deposition retained the victim’s identification of the defendant, including both her circle around what had been the defendant’s picture and her signature at the bottom of the lineup, as well as a police officer’s signature.

Finally, we reiterate that the requirement to provide zealous representation, as contemplated under our ethical rules, see Florida Bar v. Roberts, 689 So.2d 1049, 1051 (Fla. 1997) (“Failing to represent one’s client zealously, failing to communicate effectively with one’s client, and failing to provide competent representation are all serious deficiencies, even when there is no evidence of intentional misrepresentation or fraud.”), does not excuse engaging in misconduct, irrespective of one’s intent to benefit the client. As we have previously observed, “[w]e must never permit a cloak of purported zealous advocacy to conceal unethical behavior.” Fla. Bar v. Buckle, 771 So.2d 1131, 1133 (Fla. 2000). At the same time, we have recognized that “ethical problems may arise from conflicts between a lawyer’s responsibility to a client and the lawyer’s special obligations to society and the legal system. . . . ‘Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.'” Id. at 1133-34 (quoting Fla. Bar v. Machini, 635 So.2d 938, 940 (Fla. 1994)). In the instant case, we are of the opinion, in light of Schwartz’s history of repeated transgressions and the increasing egregiousness of each infraction, that he has been an overzealous advocate incapable of seeing the forest for the trees. (emphasis supplied)

The referee recommended a 90-day suspension; however, after reviewing previous Bar discipline cases, aggravating and mitigating factors, and noting the lawyer’s prior disciplinary history, the Florida Supreme Court stated:

Accordingly, Schwartz is hereby suspended from the practice of law for a period of three years, in addition to the term of probation and special conditions thereof identified by the referee, to be completed prior to seeking reinstatement. 

According to the Florida Bar News, after this opinion was rendered, Florida Bar’s Real Property, Probate and Trust Law Section committee began considering a proposal to remove the words zeal, zealous, and zealously, from the Rules Regulating The Florida Bar.  If the committee’s proposals are adopted, Florida would join at least 13 other states, including Georgia, New York, and California, which have removed “Z” words from their rules and comments.

The words “zeal,” “zealous,” or “zealously,” do not appear in the Rules Regulating The Florida Bar; however, they are used in the Preamble to Chapter 4 of the Rules Regulating The Florida Bar and in the Comment to Florida Bar Rule 4-1.3 (Diligence).

According to the Florida Bar News, a recent article in “Ethics and Professionalism,” a publication of the ABA Litigation Section, also argues that zeal and zealous should be removed from the comments to ABA Model Rules of Professional Conduct.  The ABA article posits that the words “contribute to the problem of lawyers using a misinterpretation of the Model Rules to justify their own uncivil and even unethical behavior (since) the ordinary meaning of the term ‘zealot’ is a person who is fanatical and uncompromising.”

The Preamble to Chapter 4, states, in part, that “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  The proposed revision would state, “As an advocate, a lawyer asserts the client’s position with commitment and dedication to the interests of the client under the rules of the adversary system.”  Another sentence in the Preamble states, “Zealous advocacy is not inconsistent with justice.”  The proposed revision would state, “Commitment and dedication in advocacy are not inconsistent with justice.”

The comment to Rule 4-1.3 (Diligence) states: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  The proposed revision would remove the words “and with zeal in advocacy upon the client’s behalf.”

The committee is also proposing to include the word “kindness” for the first time in a Florida Bar rule or comment.  The proposal would add the following words to the final sentence in the comment to Rule 4-1.3:  “kindness and punctuality are not inconsistent with diligent representation.”

The proposed revisions are an early draft.  If the RPPT committee approves the proposed revisions, they would be placed on the agenda of the section’s executive council for a final vote in December 2022.  The Board of Governors would then review the proposed rule revisions and the Florida Supreme Court would decide whether to implement the revisions.

Bottom line:  As I have said and written many times, the words zeal and zealous are related to the term zealot and the ordinary meaning of the term zealot is a person who is fanatical and uncompromising.  There is no place in the Bar rules or in a lawyer’s practice for fanatical and uncompromising conduct.    

Be careful out there.

Disclaimer:  this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Oklahoma lawyer is disbarred after continuing to practice law while incarcerated for committing a serious felony

Hello everyone and welcome to this Ethics Alert which will discuss the recent Oklahoma Supreme Court opinion disbarring a lawyer for continuing to run his law practice from jail after being arrested for assault and battery.  The case is State of Oklahoma ex rel. Oklahoma Bar Association v. Jay Silvernail, Case Number: SCBD-6874; Cons. w/6884 and the 6/28/22 Supreme Court opinion is here: https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=492496   

In 2016, the lawyer fired his gun at the victim after the victim pushed him to the ground.  He stated that he fired because he feared that the victim was going to “take me out.”  The opinion stated that the lawyer had “resorted to deadly force in circumstances that did not justify such a response” and “placed his own financial interests above the interests of his clients by trying to keep his practice on life support while he awaited sentencing.”    

The lawyer was convicted of assault and battery with a deadly weapon in October 2019 and was sentenced to two and a half years in prison.  The lawyer’s claim that he tried to intervene to the victim from leaving the bar with a woman who was not sober enough to make an informed decision and that he thought that the woman could be sexually assaulted was rejected.

According to the opinion, the lawyer claimed that he thought that if he could find lawyers to stand in for him at hearings and “he could operate his practice vicariously, as a sort of general manager.”  Also, the lawyer “was more interested in cash flow than client care” and his decision to bring and use a loaded gun in a verbal dispute “gives us grave concerns about his fitness to practice law.” 

The opinion further stated:

While in jail awaiting formal sentencing, Silvernail made a number of phone calls to his mother, daughter, and brother concerning his law practice.4 These family members are not attorneys, although Silvernail’s daughter had apparently served as his office manager. The conversations generally involved monitoring Silvernail’s open cases, managing the firm’s accounts, and arranging for fellow attorneys to stand in for Silvernail and seek continuances on pending matters. In one call, Silvernail estimated that he had 60 to 70 active cases. In another, Silvernail told his mother to deposit any checks received from clients directly into his operating account, rather than his client trust account.

*       *        *

The obstacles to effective representation from a jail cell should be obvious.  As an inmate, Silvernail was unable to confer with clients confidentially. He was unable to communicate freely with prosecutors or other opposing counsel about his clients’ cases. He was obviously unable to appear in court on his clients’ behalf. His ability to access legal resources, a computer or even his own clients’ files was hampered, to say the least. Finally, practicing law from a jail cell arguably gives the appearance of impropriety. These conditions would have prompted a reasonable attorney to take a different tack.

*           *           *

Both parties are content with the Tribunal’s recommendation that Silvernail be suspended from the practice of law for two years and one day. We disagree. Silvernail resorted to deadly force in circumstances that did not justify such a response. He then placed his own financial interests above the interests of his clients, by trying to keep his practice on life support while he awaited sentencing. We believe Silvernail’s behavior demonstrates his inability to provide the kind of judgment expected of a lawyer.

Bottom line:  This lawyer committed a serious felony assault/battery and engaged in improper conduct in attempting to maintain his law practice while he was incarcerated and was disbarred.    

Be careful out there.

Disclaimer:  this blog is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs