U.S. Third Circuit appeals court rejects New Jersey’s prohibition of lawyer’s website posts of excerpts of judicial opinions praising his legal work

Hello everyone and welcome to this Ethics Alert which will discuss the Third U.S. Circuit Court of Appeals opinion which reversed a federal district court opinion upholding a New Jersey guideline prohibiting a lawyer from posting judicial opinion excerpts praising his legal work. The opinion is Andrew Dwyer et al v. Cynthia A. Cappell et al, No. 13-3235 (U.S. Third Circuit Court of Appeal August 11, 2014) and the opinion is here: http://www2.ca3.uscourts.gov/opinarch/133235p.pdf
According to the opinion, the lawyer had posted multiple excerpts of unpublished and public judicial opinions related to fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination on his law firm website. One quote stated: ““The inescapable conclusion is . . . that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer. . . . Mr. Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved.”

A judge whose opinion quotes were posted on the lawyer’s website wrote to the lawyer in April 2008 and asked that the quotes be removed because he did not want his comments to be misconstrued as a blanket endorsement of the lawyer. The lawyer refused to remove any quotes and the New Jersey State Bar Association’s Committee on Attorney Advertising began examining the issue. The Committee and the New Jersey Bar Association ultimately produced Guideline 3, which was approved by the New Jersey Supreme Court in 2012. Guideline 3 stated that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The guideline did permit a lawyer to post the entire text of a judicial opinion on the website or in an advertisement.

The U.S. District Court upheld Guideline 3 in June 2013; however, before the Guideline was to become effective, the lawyer filed a lawsuit in federal court claiming that Guideline 3 violated his First Amendment rights to engage in truthful commercial speech. The district court found against the lawyer and found that the Guideline was a mere disclosure requirement and not a direct restriction on the lawyer’s speech. In making its ruling, the district court relied on the U.S. Supreme Court opinion in Zauderer v. Office of Disciplinary Counsel (1985), which stated that “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the state’s interest in preventing deception of consumers.”

The Third Circuit Court of Appeals unanimously reversed the district court’s opinion. The opinion confirmed that disclosure requirements receive less scrutiny than actual restrictions on speech and that the New Jersey Guideline had characteristics of both a disclosure requirement and a restriction on speech. The opinion did not address whether the Guideline was a restriction or a prohibition; however, it stated that even under the less restrictive standard of review for disclosure requirements, the Guideline was constitutionally flawed.

The appellate opinion stated that “Guideline 3 does not require disclosing anything that could reasonably remedy conceivable consumer deception stemming from (the lawyer’s) advertisement.” The opinion also listed an example of a disclosure that would be sufficient: “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.” Since Guideline 3 required a lawyer to post entire judicial opinions, it “effectively precludes advertising with accurate excerpts from judicial opinions on (the lawyer’s) website, it is unduly burdensome.”

“Guideline 3 as applied to (the lawyer’s) accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring (the lawyer) to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception. To the extent the excerpts of these opinions could possibly mislead the public, that potential deception is not clarified by Guideline 3. In any event, what is required by the Guideline overly burdens (the lawyer’s) right to advertise. We thus reverse the order of the District Court and remand the case.

Bottom line: This is a significant First Amendment decision related to lawyer advertising which found that New Jersey Guideline 3, which prohibited a lawyer from publishing excerpts of judicial opinions on his website, was an unconstitutional restriction on the lawyer’s commercial speech. The opinion did approve of the use of a disclosure/disclaimer to prevent any consumer confusion related to the opinion excerpts.

Be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising judicial opinion excerpts on website, Lawyer Advertising opinion, Lawyer ethics, Lawyer Ethics and Professionalism

LegalZoom files federal antitrust lawsuit against the North Carolina State Bar citing 2015 USSC dental board case

Hello everyone and welcome to this Ethics Alert which will discuss the recent antitrust lawsuit filed on June 3, 2015 by LegalZoom against the North Carolina State Bar alleging antitrust violations.  The case is LegalZoom.com, Inc. v. North Carolina State Bar, et al, (U.S. Middle District, North Carolina) Case No.: 1:15-CV-439.  The formal Complaint (WSJ link) is at http://online.wsj.com/public/resources/documents/2015_0604_legalzoom.pdf.

The Complaint was filed on June 3, 2015 and seeks injunctive relief for antitrust violations as well as damages, claiming that the North Carolina State Bar is has “engaged in unauthorized and anticompetitive conduct illegally and unreasonably restraining trade in the Relevant Market” by prohibiting LegalZoom from offering prepaid legal services plans in that state.  As support for the claims, the Complaint cites a recent U.S. Supreme Court decision on the prohibition of non-dentists from providing teeth whitening services in North Carolina.

According to the Complaint, in 1991, the North Carolina state legislature “removed from the State Bar any power over prior and continuing approval of prepaid legal services plans, leaving to the State Bar only the ministerial task of keeping a registration list of plans sold in North Carolina.  The State Bar, however, defied the Legislature. Over time, the State Bar unilaterally and ultra vires reassumed and exercised the power the Legislature had removed. The State Bar adopted – without legislative authority or active State supervision – a restrictive definition of what constitutes a prepaid legal services plan, and then began to refuse to ‘accept’ for registration plans that purportedly did not meet its own definition, excluding those plan providers from the Relevant Market.”  The Complaint states that the Bar rules require the prepaid plans to be paid in advance of any immediate need, and any legal services provided must be provided by lawyers licensed in the state.

In support of the allegations, the Complaint cites the February 2015 U.S. Supreme Court decision North Carolina State Board of Dental Examiners v. Federal Trade Commission, which is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.  The North Carolina State Board of Dental Examiners opinion held that a dental regulatory board made up mostly of dentists does not have state-action immunity in an antitrust action and authorized a Federal Trade Commission challenge to the dental board’s prohibition of the provision of teeth whitening services by non-dentists.  The opinion also found that when a state board is controlled by market participants in the occupation that it regulates, state-action antitrust immunity does not accrue unless the restraint of trade that is being challenged is affirmatively expressed as state policy and the policy is actively supervised by the state.

Bottom line: It should be very interesting to watch this case unfold.  When the USSC opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission was rendered on February 25, 2015, there was much analysis/commentary in the media regarding the potential vulnerability of state Bars to an antitrust challenge if it could be shown that they were controlled by market participants (lawyers) in the occupation being regulated (the law).  This appears to be the first shot across the bow.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 Bar antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, LegalZoom, LegalZoom antitrust

Wisconsin lawyer’s alleged failure to appear at trial and later offer of gift card to a judicial assistant results in Bar disciplinary complaint

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent Bar Complaint filed against a Wisconsin lawyer who, inter alia, allegedly failed to appear for a trial and then “tossed a gift card” on the desk of the judge’s assistant in an apparent attempt to gain favor regarding the judge’s decision not to reschedule the trial and imposing the default judgment.  The disciplinary complaint name and file number is In Re: Kirk W. Everson, Case No. 2015AP1054D.

According to a disciplinary complaint filed by the Wisconsin Office of Lawyer Regulation on May 28, 2015, the lawyer was scheduled to appear in a trial on a drunken driving ordinance violation in Oshkosh, Wisconsin before a Circuit Judge named Thomas Gritton.  On the same morning, the lawyer was also scheduled to appear in a criminal case before a different judge in another Circuit Court in Vilas County, Wisconsin.

The lawyer had agreed to represent the defendant in Vilas County, Wisconsin during the week of September 23, 2013.  On September 26, 2013, the lawyer filed a motion requesting a continuance of the trial before Judge Gritton; however, the judge apparently had not received it by September 30, 2013.

The case was then called for trial on September 30, 2013.  The judge said: “Well I didn’t give you permission not to be here.  Nobody gave—I mean, you just don’t get to not show up.  It is not the way it works.  And he had nothing from my office or from me directing him that he didn’t need to be here.  I’m going to find him in default.  I’m going to set a sentencing date and we’ll see what he (the lawyer) has to say.”

The judicial assistant called the lawyer on September 30, 2013 and advised him that the judge had defaulted and found his client guilty because of his non-appearance at the trial and she was calling to calendar a sentencing date.  She also stated that she did not know what would happen and the lawyer became agitated and told the assistant that he was being “railroaded” by the court and the assistant city attorney.  The lawyer said he did not have his schedule and the judicial assistant then said that she would contact the lawyer’s assistant to set up the hearing.

Later that same day, the lawyer went to the courthouse and “tossed a gift card” on the judicial assistant’s desk. The judicial assistant said that she could not accept it and moved it back toward the lawyer.  The lawyer then said the following (or something similar to): “What, I don’t see anything” and took back the card.  The Complaint does not specify the dollar amount of the gift card.

The judicial assistant told the judge of the lawyer’s alleged misconduct and the judge subsequently advised the Wisconsin Bar authorities (Office of Lawyer Regulation) regarding  the incident.  According to media reports, the judge revoked lawyer’s client’s driver’s license for eight months in October 2013 and the Wisconsin Bar has offered the lawyer a private reprimand to resolve the complaint.

Bottom line:  This Wisconsin lawyer apparently failed to appear at a trial and, after a default was entered, he attempted to offer an improper gift card/incentive to a judicial assistant and is being offered a private reprimand.  It would be very surprising if this result is approved by the Wisconsin Supreme Court.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline failure to appear for trial, Lawyer discipline improper attempt at gift to judicial assistant, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer sanctions

Florida Supreme Court opinion makes significant revisions to Florida Bar Rules on trust, confidentiality, and reinstatement procedures

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida implementing, inter alia, significant revisions to the trust account, confidentiality, diversion, and reinstatement rules.  The opinion is In Re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), No. SC14-2088 (June 11, 2015) and is online here:  http://www.floridasupremecourt.org/decisions/2015/sc14-2088.pdf. The amendments will become effective on October 1, 2015, at 12:01 a.m.

The opinion revises Bar Rule 3-5.3(c) to state as follows:  “a respondent who has been the subject of a prior diversion is not eligible for diversion for the same type of rule violation for a period of 5 years after the earlier diversion. However, a respondent who has been the subject of a prior diversion and then is alleged to have violated a completely different type of rule at least 1 year after the initial diversion, will be eligible for a practice and professionalism enhancement program.”  This rule change will reduce the period of ineligibility for a diversion from 7 to 5 years and permit a lawyer to receive more than one diversion in a 5 year period if the Bar rule allegations are not the same.

The opinion also revises Bar Rule 3-7.10(b)(1) to permit a suspended lawyer to file a petition for reinstatement after completion of at least 80% of the term of the period of suspension.  The opinion also revised Bar rule 4-1.6(c)(6) to permit a lawyer to obtain or provide confidential 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.”  This creates a new exception to the application of the confidentiality rule.

The opinion adds Bar Rule 4-1.6(e) which states 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.”  This puts the burden on the sending lawyer to make reasonable efforts to prevent inadvertent/unauthorized disclosure of confidential information.

The opinion revises Bar Rule 5-1.1(a)(1)(B) to permit a lawyer to deposit “the lawyer’s own funds into trust to replenish a shortage in the lawyer’s trust account. Any deposits by the lawyer to cover trust account shortages must be no more than the amount of the trust account shortage, but may be less than the amount of the shortage. The lawyer must notify the bar’s lawyer regulation department immediately of the shortage in the lawyer’s trust account, the cause of the shortage, and the amount of the replenishment of the trust account by the lawyer.”  This revision specifically permits a lawyer to replenish funds into the trust account when there is a shortage without violating the prohibition against commingling.

Bottom line:  Many of these Bar rule revisions are a result of recommendations made by the 2011-2012 Florida Bar Commission on Review of the Grievance System in its 2012 Report.  The Commission was appointed by then Bar President Scott Hawkins and the undersigned was a member.

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 is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 Ethics, commingling, Confidentiality, Diversion, Florida Bar, Inadvertent disclosure of Confidential Documents, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer diversion, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer reinstatement, Lawyer trust accounts, Reinstatement

Florida Bar Statewide Advertising Committee finds that texts to prospective clients on specific matters are prohibited solicitations

Hello everyone and welcome to this Ethics Alert which will discuss the recent decision of the Florida Bar’s Statewide Advertising Committee to reject a plan by a law firm to obtain cell telephone numbers and send texts to prospective clients on specific matters since the text messages would be solicitations in violation of the Bar advertising rules.

The issue of whether a text message to a prospective client regarding a specific matter was recently reviewed by the Florida Bar’s Standing Committee on Advertising at its May 12, 2015 meeting.  The issue was reviewed after a criminal defense firm requested authorization to send text messages to prospective clients and guidance on its plan to use a computer system to send text messages regarding the firm’s legal services to potential clients who were arrested.  The law firm argued that a telephone number for text messaging is the functional equivalent of an e-mail address which are permitted communications under the Florida Bar Rules.

Florida Bar Advertising Rule 4-7.18 states that (with exceptions) a lawyer may not solicit professional employment from a prospective client by telephone or other communication directed to a specific recipient.  The Telephone Consumer Protection Act (TCPA) also prohibits telephone solicitations and the use of automated telephone equipment to send SMS text message and faxes.

The law firm’s plan was to use a daily list provide by the county clerk to obtain e-mail addresses and mobile telephone numbers of individuals arrested the previous day.  This information would be entered into an automated system which would send text messages offering its legal services.  The firm stated that it would only send a text if an e-mail was unavailable and that there would be an “opt out” provision to allow the recipient to decline future communication.

The Florida Bar Advertising Department’s lawyers had voted unanimously that the proposed text messages were prohibited and violated Rule 4-7.18 since text messages fall within the language of the rule’s prohibition against telephone communication and also since the proposal would likely violate the TCPA.  The law firm appealed the decision to the Florida Bar’s Standing Committee on Advertising.  The Standing Advertising Committee voted 6-1 against the proposal.  The law firm requested review by the Florida Bar’s Board of Governors and the review has been scheduled for the Board’s July 2015.

Bottom line:  This is another example of analysis and application of new digital media to the Bar advertising rules.  In this case, The Florida Bar’s Statewide Advertising Committee decided that text messages to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules.  Expect more of these reviews and issues in the future and stay tuned for the decision of the Board of Governors on this one.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 2013 Florida comprehensive advertising rule revisions, Advertising and solicitation with text messages, Attorney Ethics, Communication with clients, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

Illinois lawyer who lied about mother’s death and health problems to justify discovery delays and the continuance of a hearing consents to disbarment

Hello everyone and welcome to this Ethics Alert which will discuss the recent motion for revocation/disbarment filed by an Illinois lawyer in response to allegations that he lied about his mother’s death and his own health to try to justify discovery delays and support a continuance of a hearing in two separate cases.  The case is In the Matter of: Keith Joseph Hays, Supreme Court No. M.R.27422 Commission No. 2014PR00065.  The lawyer resigned from the Indiana Bar in April 2015.  The lawyer filed a motion requesting that his name be stricken from the list of Illinois Attorneys and the link to the Illinois Bar Statement of Charges and is here:  http://www.iardc.org/P14PR0065OC.html

According to the Statement of Charges, the lawyer lied about the reasons for his delayed responses to discovery and request to continue a hearing in two Indiana cases, and made settlement offers without authorization in a third case.

In one case, the lawyer justified his delays in responding to discovery requests by claiming that his mother had been “killed in a violent car accident in the state of Colorado.”  The lawyer also said that she died in “the fire and smoke inhalation from the resulting conflagration,” and that he was “left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted.”  The lawyer’s mother not been involved in a car accident or died.

In another case, the lawyer filed an emergency motion to continue a hearing and claimed that he had been diagnosed with “double pneumonia” and went to an emergency room; however, the lawyer did not actually have pneumonia and, incredibly, he billed his client for time that he spent working on the case when he was supposedly incapacitated.

The lawyer admitted to the following facts:

“In 2011, Respondent represented Staples the Office Superstore East (a subsidiary of Staples, Inc.; hereafter, “Staples”), the defendant in a personal injury action filed in Indiana state court by Max Jackson (“Jackson”). In the course of discovery, Jackson filed a motion for sanctions alleging that Respondent’s client, Staples, had failed to fully respond to a request for production of documents and interrogatories. Respondent filed a response in which he claimed, in part, that his mother had been “killed in a violent car accident in the state of Colorado,” that she perished from “the fire and smoke inhalation from the resulting conflagration,” and that Respondent “was left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted.” Respondent’s statements were false, and he knew they were false, since his mother had neither died nor been involved in a car accident, and Respondent had not been “left scrambling between Indiana, Colorado and Idaho” to resolve his mother’s affairs.”

“In 2011, Respondent represented Reed & Company, P.C. (“Reed”), the defendant in a civil lawsuit filed in Indiana state court by Wabash Center, Inc. (“Wabash”). After Wabash filed a motion for partial summary judgment, the court set the matter for hearing on that motion. On the date of the scheduled hearing, Respondent filed an emergency motion requesting that the hearing be continued, based on his representation that the day before, he had been diagnosed with “double pneumonia” and sent to the emergency room. Respondent’s statements were false, and Respondent knew they were false, as Respondent had not been sent to the emergency room with pneumonia, and in fact, he had billed his client Reed for time spent preparing a summary judgment motion on Reed’s behalf during the time period that he purportedly was incapacitated.”

Bottom line: According to the facts to which the lawyer admitted, he made some incredible false statements which could easily be refuted, and his lies were ultimately discovered.  I’m not doctor, but there would appear to be some serious psychological issues underlying this conduct.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 misrepresentation, deceit, dishonesty, 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 filing frivolous pleading, Lawyer misrepresentation, Lawyer resignation in lieu of discipline/disbarment, Lawyer sanctions

Pennsylvania Supreme Court suspends lawyer for 2 years for assisting UPL, improperly accessing CM/ECF, and making false statements

Hello and welcome to this Ethics Alert which will discuss the recent Pennsylvania Supreme Court Order approving the Report and Recommendations of the Pennsylvania Disciplinary Board and suspending a lawyer for 2 years for, inter alia, aiding the unlicensed practice of law, improperly accessing the bankruptcy court’s CM/ECF system, and making false statements when he was confronted with the allegations.  The case is Office of Disciplinary Counsel v. William Nivan Renwick, No. 2146 Disc. Docket No. 3, No. 153 DB 2013  (Pa. SC May 14, 2015).  The link to the SC Order and Report and Recommendations are here: http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/153DB2013-Renwick.pdf.

According to the March 12, 2015 Report and Recommendations of the Pennsylvania Disciplinary Board, the lawyer, who had been practicing for more than 30 years, appeared at hearings and creditor meeting for “several” of a suspended lawyer’s clients and filed documents with U.S. Western District of Pennsylvania Bankruptcy Court CM/ECF system by using the suspended lawyer’s electronic filing account number.  The lawyer also changed the name on the suspended lawyer’s CM/ECF account twice, once in December 2007 to the name of a lawyer who was not licensed to practice, and a second time in November 2009 to his own name.

The Report further states that the lawyer did not have the required training to use the CM/ECF system and improperly used the suspended lawyer’s account.  At a hearing held in August 2012, the chief judge of the bankruptcy court ordered the CM/ECF account closed and required the lawyer to send notices to the those involved in his cases stating that his authorization to file documents on the system had been terminated.

When the chief judge asked the lawyer where worked at the hearing, he told the judge he had been “working in the other office in whatever it is, Altoona or whatever”, which was a false statement.  The lawyer was then suspended from practice before the District Court.  According to the Report, “(n)ot only did (the lawyer) assist (the suspended lawyer) in the unauthorized practice of law, his own practice was in violation of the federal rules because he didn’t obtain his own identification number. When asked about his practices, (the lawyer) told the judge he practiced in the office of Augusto Delerme in Altoona.”  The Pennsylvanoa Supreme Court upheld the Board’s recommendation and suspended the lawyer for 2 years

Bottom line:  This lawyer apparently was trying to help a suspended lawyer; however, he failed dismally in his attempts and he also made some misleading/false statements at the hearing before the chief judge along the way.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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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Texas judge admonished for commenting on pending criminal case on her Facebook page and violating her own order

Hello everyone and welcome to this Ethics Alert which will discuss the recent Texas State Commission on Judicial Conduct admonished a Texas district court judge for commenting about a controversial trial on her public Facebook page after issuing jury instructions prohibiting same.  The case is In re: Hon. Michelle Slaughter, CJC No. 14-0820-DI & 14-0838-DI  (April 20, 2015).  The link to the opinion is here: https://www.documentcloud.org/documents/2066528-slaughter-admonition-2015.html and here: http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf

According to the admonition, the judge maintained a public Facebook page which had an image of her in a robe, which she said she set up to fulfill a campaign promise to educate the public about the courts.  The judge presided over a criminal case in which in which a defendant named David Wieseckel was criminally charged with unlawful restraint for allegedly keeping a 9-year-old boy in a 6 feet by 8 feet wooden enclosure that was used as the child’s bedroom.

The admonition states:  “On April 26, 2014, Judge Slaughter posted the following comment on her Facebook page: ‘We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning.’ The following day, in response to the post described above, a person named Jeff Bodie posted the following comment on Judge Slaughter’s Facebook page: ‘One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor……’”

“In a pre-trial hearing on April 28, 2014, the defendant’s attorney argued a motion in limine to limit the use of the term ‘box’ to describe the wooden enclosure at trial, contending that the term was prejudicial to the defendant and misstated the evidence. Judge Slaughter denied defense counsel’s motion, stating the following: ‘Calling it a wooden enclosure – certainly the press has referred to it as ‘The Boy in the Box’ case, that sort of thing. So I don’t think that there’s going to be prejudice. The jury can make up their own minds as to what they believe that is.’”

“On April 28, 2014, after the jury had been selected, Judge Slaughter provided the jurors with oral instructions regarding their use of social media, including Facebook, and their access to any news stories about the case. The judge expressly admonished the jurors as follows: ‘During the trial of the case, as I mentioned before, you cannot talk to anyone. So make sure that you don’t talk to anyone. Again, this is by any means of communication. So no texting, e-mailing, talking person to person or on the phone or Facebook. Any of that is absolutely forbidden.’”

“In addition the judge provided written instructions to the jury that included the following admonition: ‘Do not make any investigation about the facts of this case. … All evidence must be presented in open court so that each side may question the witnesses and make proper objection. This avoids a trial based upon secret evidence. These rules apply to jurors the same as they apply to the parties and to me (the judge).’”

“On April 29, 2014, after the first day of testimony, Judge Slaughter posted the following comments on her Facebook page: • ‘Opening statements this morning at 9:30 am in the trial called by the press ‘the boy in the box’ case.’” • ‘After we finished Day 1 of the case called the ‘Boy in the Box’ case, trustees from the jail came in and assembled the actual 6”x8’ ‘box’ inside the courtroom!’ • ‘This is the case currently in the 405th!” [this post included a link to a Reuters article entitled: “Texas father on trial for putting son in a box as punishment.’]”

The judge was later removed from the case after defense counsel filed a motion to recuse her, claiming that she had improperly commented about the trial on her Facebook page and improperly posted the link to the Reuters article.  Following her recusal, the case was transferred to another judge who judge granted a motion for a mistrial.

The judge argued at her discipline hearing that her Facebook posts were to promote “transparency” and to “encourage individuals to come watch the proceedings” and that the posts made it clear that it was the media which referred to the case as the “boy in the box” case. She also said she was “shocked” to see the “Hang ‘Em High” post and removed it from her page months later. She also argued that all of her comments were true and based on publicly available information.

The admonition noted that the judge’s Facebook posts, her recusal, and the subsequent mistrial received widespread negative media attention which criticized her conduct.  The judge had also posted comments on her Facebook page about another criminal trial pending in her court.  The judge removed the Facebook page after the investigation began.

“Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the Wieseckel case or in other high-profile cases.” “The comments went beyond providing an explanation for the procedures of the court and highlighted evidence that had yet to be introduced.”  The admonition requires the judge to obtain four hours of instruction with a mentor in addition to her required judicial education.

According to media reports, the judge stated that she disagreed with the commission’s decision but would appeal.  She also stated: “ None of my statements indicated any probable decision I would make, and none of my statements expressed a bias for or against any particular party. Everything I posted was publicly-available information”.

Bottom line:  This is yet another example of a judge landing in hot water for comments made on social media, this time on Facebook.  Judges (and lawyers) who maintain social media pages and make comments on them must be aware of the consequences of comments which may be inappropriate and which could result in discipline, which occurred in this case.  If the judge appeals, the Texas Supreme Court will issue a final opinion.

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 is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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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