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According to the opinion, the lawyer had posted multiple excerpts of unpublished and public judicial opinions related to fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination on his law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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ABA Formal Opinion 475 addresses when lawyers from different law firms are permitted to share a referral fee

Hello and welcome to this Ethics Alert blog which will discuss the recent American Bar Association Formal ethics Opinion which addresses when lawyers may share a fee in a referral arrangement.  The opinion is ABA Formal Ethics Opinion 475 and was issued on April 21, 2016.  The formal opinion is here: http://www.abajournal.com/files/FO_474.pdf

Under ABA Model Rule 1.5(3) (and the Bar Rules of most jurisdictions), lawyers may refer cases to lawyers in other firms and receive a fee as long as the referring lawyer performs legal services or assumes joint responsibility for the case. Comment 7 to Model Rule 1.5 explains that these arrangements most often occur between a referring lawyer and a trial lawyer.  ABA Formal Ethics Opinion 474 discusses the propriety of referral fees between lawyers, explains that clients must consent in writing to such arrangements, and provides examples of when a lawyer does and does not have a conflict of interest.

The opinion notes that state rules related to referral fees vary widely.  Some states only require client consent and a total reasonable fee and some states prohibit referral fees altogether.  Other states (including Florida) require that the referring lawyer either perform legal services of assume joint responsibility for the case (which would include potential legal malpractice liability) and limit the amount of the fee without court approval.

The client must consent to the referral arrangement and be fully informed of the agreement regarding the division of fees before or within a reasonable time after the representation begins.  A lawyer cannot be involved in the case (or receive a referral fee) if there is a conflict of interest unless the lawyer obtains a waiver which meets the requirements of ABA Model Rule 1.7(b), which includes the requirement that each affected client give informed consent in writing (if the conflict is waivable).  A lawyer cannot perform legal services or assume responsibility for the case, however, if he or she has a conflict of interest.

The opinion also states that “(t)he agreement must describe in sufficient detail the division of the fee between the lawyers including the share each lawyer will receive.”  In addition, a referral agreement should not be entered into toward the end of the attorney-client relationship but must be disclosed and agreed to by the client “either before or within a reasonable time after commencing the representation.”

Bottom line:  Lawyers should be aware that, although most jurisdictions (including Florida) permit referral fees, the Bar rules typically impose the requirement that the client provide informed consent in writing to the referral fee and the fee is also subject to limitations in the amount without court approval (25% in Florida without court approval).  In addition, if a lawyer is unable to represent a client outright because of a conflict of interest that is not waived or waivable, the lawyer will not be able to accept a referral fee since, in Florida and most jurisdictions, the referring lawyer must either perform legal services or assume joint responsibility for the matter (which includes potential legal malpractice liability).  Lawyers should consult the Bar Rules in his or her jurisdiction before participating in a referral fee.

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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New Jersey Supreme Court opinion holds that lawyers accused of improper Facebook access can be charged with ethics violations

 

Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of New Jersey opinion which held that lawyers who allegedly engaged in improper conduct related to access of an opposing party’s Facebook page can be charged with disciplinary rule violations.  The disciplinary matter is John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (New Jersey Supreme Court 4/19/16).  The disciplinary opinion is here: http://www.judiciary.state.nj.us/opinions/supreme/A6214JohnRobNJ.pdf

According to the opinion, in the underlying matter, the plaintiff sued Bergen County New Jersey related to injuries that he allegedly sustained when a police car struck him in 2007.  The two lawyers represented the plaintiff and:

“(i)n order to obtain information about Hernandez, plaintiffs directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s “friends.” The OAE contends that plaintiffs directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account.  She therefore submitted a “friend request” to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.

The opinion states that the plaintiff learned of the alleged misconduct when the lawyers “sought to add the paralegal as a trial witness and disclosed printouts” from the plaintiff’s Facebook page.  The opinion did not address whether the two lawyers violated any ethics rules or should face sanctions, but whether the New Jersey Office of Attorney Ethics (OAE) could prosecute the lawyers for the alleged misconduct after a regional disciplinary committee found that the lawyers’ actions, even if proven, did not constitute unethical conduct and dismissed the matters.

The OAE disagreed with the disciplinary committee and filed a disciplinary complaint with the Supreme Court against the lawyers.  The complaints alleged, inter alia, that the two lawyers communicated with a represented party without consent of the party’s lawyer and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.  The two lawyers argued that they acted in good faith and had not committed any unethical conduct. They also stated that they were “unfamiliar with the different privacy settings on Facebook.

The opinion noted the unique nature of this attorney disciplinary matter and stated that it involves a “novel ethical issue” and “no reported case law in our State addresses the sort of conduct alleged.”  The court unanimously held:

“Consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.”

Bottom line:  Lawyers beware: although this issue has not previously been addressed by the New Jersey Supreme Court (or the Florida Supreme Court), the Florida Bar Rules (and the Bar disciplinary rules of most, if not all jurisdictions, including New Jersey), prohibit a lawyer from communicating with a represented person without the consent of that person’s lawyer.  Florida Bar Rule 4-4.2(a) prohibits lawyers from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”  The Rule is here:  Florida Bar Rule 4-4.2.  This rule would appear to prohibit a lawyer (or the lawyer’s agent) from accessing an opposing party’s Facebook (or other social media) page by sending a “friend” or other request and obtaining information that has been made private on that person’s settings.

Be careful out there.

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 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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Missouri Supreme Court suspends lawyer who used payroll document and opposing counsel’s written direct exam questions from e-mails hacked by client

 

Hello and welcome to this Ethics Alert update blog which will discuss the disciplinary case against a Missouri lawyer who failed to disclose payroll document and direct examination questions of opposing counsel which were obtained by his client/husband by hacking the wife’s e-mail account, used them at a settlement conference, and planned to use them at a trial+.  The disciplinary case is In Re: Joel B. Eisenstein, No. SC95331 (Missouri SC 4/5/16) and the opinion is here: http://www.courts.mo.gov/file.jsp?id=99378.  My previous blog on this case is here:  https://jcorsmeier.wordpress.com/2016/02/11/missouri-lawyer-alleged-to-have-used-payroll-document-and-opposing-counsels-written-direct-exam-questions-from-e-mails-hacked-by-client/.

According to the disciplinary opinion, the lawyer was representing the husband in a dissolution matter.  The husband hacked the wife’s e-mail account and obtained her payroll documents and a list of direct examination questions prepared by the wife’s lawyer for the upcoming trial.  The husband gave the lawyer the payroll document in November 2013 and he used the payroll information in the document during a mediation/settlement conference before the trial.

During the trial, the lawyer provided documents to the opposing counsel which included a list of the direct examination questions which the opposing counsel had prepared and sent to her client via e-mail.  The opposing counsel asked the lawyer why he had the list of questions and he told her that there were some leading questions and he planned to object to them.

During a hearing that followed on the issue, the lawyer stated that his paralegal had erroneously included the questions in the stack of exhibits and claimed that he was joking when he made the remark about the leading questions to opposing counsel.  He admitted that he had received the documents from his client and failed to disclose them to opposing counsel.  The lawyer later sent opposing counsel an e-mail stating: “Rumor has it that you are quite the ‘gossip’ regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel’”.

According to the opinion, the lawyer violated Missouri Bar rules by failing to promptly disclose to opposing counsel that he had received the information/documents from his client and by sending the threatening e-mail to opposing counsel, which was prejudicial to the administration of justice.  According to media reports, the lawyer is 70 years old, and the opinion set out the lawyer’s prior disciplinary record:

Mr. Eisenstein’s license has been disciplined on five prior occasions. In 1991 and again in 1999, Mr. Eisenstein was admonished for violating Rule 4-3.5(b) by engaging in ex parte communications with the judge. In 1997, this Court suspended Mr. Eisenstein after he  pleaded guilty to a federal misdemeanor for willfully failing to file an income tax return. In 2001, Mr. Eisenstein was admonished for violating Rule 4-8.1(b) by failing to respond to the OCDC’s request for information regarding an ethics complaint. Finally, in 2004, Mr. Eisenstein was admonished for violating Rule 4-3.3(d) for failing to inform the court of material facts relevant to a pending issue.

The opinion of the majority suspended the lawyer indefinitely and for a minimum of 6 months with reinstatement conditioned upon the lawyer meeting the requirements for readmission.  Two justices dissented and said that the lawyer should be suspended indefinitely and for a minimum of 12 months.  The dissenting opinion stated it was inappropriate for the lawyer to solicit the bar and judiciary to influence the state supreme court in the case and “(o)ne of these solicitations took the form of an e-mail titled ‘I’m too old for this xxxx!!’ (Expletive deleted.)” The e-mail from the lawyer included what he claimed was a “complete history” of the case which the dissent stated “varies greatly from the facts” found by the disciplinary hearing panel.

Bottom line:   As I stated in my earlier blog, this was very serious misconduct and the opinion makes it clear that the lawyer knew that the documents were obtained without the wife’s permission and did not advise opposing counsel.  Compounding the misconduct, the lawyer used the improperly obtained payroll document to his advantage  at a mediation/settlement conference and may also have been planning to use the direct examination questions to his advantage without opposing counsel’s knowledge until the paralegal included the document with the copies of exhibits by mistake.  The lawyer also sent an e-mail threatening the opposing attorney if she pursued the matter and tried to improperly influence the court.   The sanction may have been more severe in a different jurisdiction.

Be careful out there…and of course, do not do this.

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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Oklahoma Supreme Court publicly censures lawyer who had been permanently suspended by bankruptcy court for disobeying order

Hello and welcome to this Ethics Alert blog which will discuss recent Oklahoma Supreme Court opinion censuring a lawyer who had been permanently suspended from practicing before the bankruptcy court for disobeying a bankruptcy judge’s order.  The case is State ex rel. Oklahoma Bar Association v. Oliver, case number Case Number: SCBD-6268 (Oklahoma Supreme Court, March 29, 2016).  The disciplinary opinion is here:  http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=477506

According to the opinion, the lawyer was suspended for 30 days by a bankruptcy judge in the Western District of Oklahoma on October 29, 2014, he was reinstated on December 1, 2014, and he was suspended again for 60 days on January 14, 2015.

In a show cause hearing on May 6, 2015, the bankruptcy judge told the lawyer that he had errors in nine documents that she had assigned for him to complete and required that he show cause as to why he should not be permanently suspended from practicing in that court. The lawyer stated that he had an attorney friend who would be willing to assist him with his filings.  The judge told the lawyer that he had 30 days to have a bankruptcy attorney who was well-versed in the local bankruptcy rules and guidelines to assist him and file a document confirming that attorney’s assistance. The judge also required the lawyer to resubmit the documents without any substantive or typographical errors.

The judge issued an order on May 7, 2015 confirming her instructions at the show cause hearing. The lawyer was required to refile the nine documents and, “(i)n doing so, (the lawyer) may not seek or obtain assistance from this Court’s law clerk, the staff of the Court Clerk’s office or any other person.”  The order also confirmed that the lawyer was required to file a document under oath from a bankruptcy attorney who was “well versed in the Local Rules and Guidelines of the court and the Federal Rules of Bankruptcy Procedure” and agreeing to assist in the preparation and filing of documents with the court.

On June 15, 2015, the judge permanently suspended the lawyer from practicing in the court after concluding that he had disobeyed her order by contacting a bankruptcy attorney who was admitted in that court and paying him $1,000.00 to prepare and provide the nine documents that she had required in the show cause order.

The bankruptcy attorney testified at the disciplinary hearing that the lawyer had only asked him to review the nine documents that he had already completed and that the $1,000.00 was for the attorney to continue to help the lawyer in his bankruptcy practice. The attorney submitted the agreement which stated that part of the $1,000.00 was to be credited to future months, and provided the amounts of future payment.  He also testified that he had contacted the clerk to obtain guidance on the court’s requirements and he not been asked to prepare the documents for the lawyer nor had he written them.  The opinion stated that the evidence did not support any discipline related to that issue.

The Bar trial panel recommended that the lawyer be publicly reprimanded for failing to provide notice to the Oklahoma Bar regarding his bankruptcy court suspensions. The panel also found that the lawyer did not deliberately conceal his suspensions and that he had admitted that his oversight resulted from his ignorance of the rule.  The lawyer had notified his clients of the January 14, 2015 sixty day suspension on April 21, 2015 and he admitted that he should have provided more timely notice of his suspensions to his clients.

The Bar prosecutor’s office recommended that the lawyer’s discipline be in the range of a public censure to a 6 month suspension.  After hearing the mitigating evidence and the witnesses, the trial panel recommended that the lawyer receive a public censure and found that “(t)here is no evidence of a deliberate effort at concealment.”  The panel also noted that the lawyer continued to attend bankruptcy CLE seminars even though he was no longer required to attend them.

The disciplinary opinion stated that the lawyer acknowledged his lack of expertise in computer skills and his frustration in trying to meet the federal court’s expectations in filing electronic pleadings and that he also admitted that he had failed to report his suspensions to the Oklahoma Bar and that he did not timely notify his clients of the suspensions.  The lawyer received a public censure; however, two justices dissented and stated that they would suspend the attorney for two years plus one day.

Bottom line:  This is an unusual case.  The lawyer was permanently suspended by a bankruptcy judge from practicing in (after being suspended on two previous occasions) and then failed to report his suspensions to the general counsel of the Oklahoma Bar Association and failed to “timely” notify his bankruptcy clients of the suspensions; however, he received only a public censure of his license to practice in Oklahoma.  This is an example of how discipline imposed by a federal bankruptcy court (or other federal or administrative court) does not automatically result in the same discipline by the state court, unlike state court discipline, which typically results in reciprocal discipline of the lawyer’s license to practice in other states.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Pennsylvania woman who posed as a lawyer for 10 years is convicted of UPL, forgery, and records tampering

Hello and welcome to this Ethics Alert blog which will discuss recent conviction of a Pennsylvania woman who posed as a lawyer for 10 years using fictitious documents and another lawyer’s license number.  The case is Commonwealth of Pennsylvania v. Kimberly M. Kitchen, case number CP-31-CR-0000274-2015 (Court of Common Pleas of Huntingdon County).  The court docket is here:  https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-31-CR-0000274-2015

According to media reports, the woman had been named a partner at a Pennsylvania law firm in April 2014 when her actions were discovered later that year.  She had spent the previous decade working as a lawyer by the time the state attorney general’s office brought charges against her in 2015.  She had also served as served as president of the local county bar association.

According to the criminal charges and media reports, the woman created fictitious bar examination results and a law license and a false check for the state attorney registration fee, and she also created a false e-mail purportedly showing that she attended Duquesne University law school.

The woman handled estate planning for more than 30 clients and even served as president of the county bar association for a time. She made partner at her firm before the fraud was discovered.  Her biography page (which has been deleted) said that she spent a decade as a paralegal at another firm in Pittsburgh and that she graduated summa cum laude from Duquesne law school in Pittsburgh.

A former county bar association president told the Huntingdon Daily News, which first reported on the matter, that by specializing in estate planning on inheritance court documents, the woman was able to stay out of the courtroom.

According to a recent Wall Street Journal report, the woman’s attorney said she would be considering an appeal since, in order to prove the most serious charge of records tampering, prosecutors had to show that someone “relied on the deceit to their detriment.”  The lawyer contends that nobody was harmed by the deception since “apparently everyone was satisfied with (her services) for at least a decade.”  The lawyer also stated that  “(n)obody ever challenged her credentials.”

The judge found the lawyer guilty of misdemeanor UPL, misdemeanor forgery, and felony tampering with a public record/information on March 24, 2016 and did not immediately schedule sentencing.

Bottom line:  This individual appears to have been successful in posing as an attorney for over ten years in Pennsylvania and was made a partner in a law firm and served as a local Bar president using false credentials and a false law license.  Lawyer be wary and be sure to fully investigate any lawyer that you hire.

…and be careful out there.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer unlicensed practice of law, Non-lawyer practicing law, Unauthorized practice of law, Unlicensed practice of law

Florida Bar Board of Governors considers advertising rule amendments on use of “expert” and “specialist” and approves rule regarding faxes, telegrams and online chatrooms

Hello and welcome to this Ethics Alert blog which will discuss the recent Florida Bar Board of Governors meeting wherein the BOG discussed rule changes to comply with a Florida federal district court judge’s Order finding that Bar rule which prevented non-certified lawyers from stating they have expertise or specialize in an area of law were unconstitutional and enjoining their enforcement.  The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcing the rule.  The case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The injunction order is attached and is in the federal court’s Pacer system here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

According to a March 1, 2016 Florida Bar News article, the chair of the Board Review Committee on Professional Ethics told the BOG at the meeting that the committee is considering several potential amendments; however, it has not agreed on a single version of the amendment. The committee chair said that the committee expected to make a recommendation at the board’s March 10, 2016 meeting; however, it is not clear whether the topic was discussed at that meeting.  The Florida Bar News article is here:  http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/Articles/A1C3E4D1089C7B3785257F61004E782D

The BOG review was started after a September 30, 2015 Order by U.S. Northern District of Florida Judge Robert L. Hinkle in a lawsuit filed against The Florida Bar by the Searcy, Denney, Scarola, Barnhart & Shipley, P.A. law firm.  The lawsuit challenged Bar rules which permit only Florida Bar (or the equivalent) certified lawyers to hold themselves out as “experts” or “specialists” in their advertisements.  The Order stated non-certified lawyers and law firms could have expertise in an area even if they were not certified and that the regulation prevented lawyers from claiming expertise in areas for which there is no available Bar certification and enjoined the Bar from enforcing the rule as applied.

According to an article in the October 15, 2015, Florida Bar News, “As a result of Hinkle’s ruling, the Bar’s Ethics and Advertising Department, which reviews lawyer ads, has announced it will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers.  ‘Instead, the Bar will point out to the filer that the advertisement makes claims of specialization or expertise, and the filer may use them only if the filer can objectively verify those claims’, Bar Ethics Counsel Elizabeth Tarbert said in a letter to Bar officials.”

The BOG also approved the Board Review Committee on Professional Ethics’ recommendation to allow lawyers to communicate directly with potential clients using facsimiles, telegrams, and in online chatrooms as long as the lawyers follow the Florida Bar rules related to direct mail communications/solicitations.  According to Bar Ethics and Advertising Counsel Elizabeth Tarbert, any solicitation made by the lawyer, including  within a chatroom, must be preapproved by the Bar and must also comply with any applicable state and federal laws on solicitations using those methods of transmission.

The direct communications must be characterized as “advertisements” and tell the recipient to disregard them if they already have an attorney in the matter. The amendments were revised for uniformity after the BOG recently decided that direct text communications were permissible under Bar rules.  The rule amendments will now be sent to the Florida Supreme Court for review and potential approval.

Bottom line:  The BOG will hopefully approve a Bar Rule amendment which will provide constitutionally compliant guidance to lawyers regarding when they can state that they are “experts” or “specialists”, even if they are not certified by The Florida Bar (or the equivalent).  It is most likely that the rule will have minimum requirements such as the number of years of practice and experience, among other potential criteria.  Stay tuned……and be careful out there.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Advertising and solicitation with text messages, Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising rules, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism

Ohio Supreme Court permanently disbars lawyer who was videotaped in court practicing law while indefinitely suspended

Hello and welcome to this Ethics Alert blog which will discuss another recent Ohio Supreme Court opinion disbarring a lawyer who was caught on video representing a client in court 3 times, beginning less than three months after his license was indefinitely suspended.  The case is Cleveland Metro. Bar Assn. v. Pryatel, Slip Opinion No. 2016-Ohio-865. (March 9, 2016).  The disciplinary opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-865.pdf and the link to the oral argument in the case is here: http://www.ohiochannel.org/video/case-no-2015-1005-cleveland-metropolitan-bar-association-v-mark-r-pryatel.

According to the opinion, the lawyer was indefinitely suspended in April 2013 for multiple violations of lawyer disciplinary rules, including misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  The lawyer was subsequently recorded on video and audio tapes representing a client (Richard Brazell) in court on three separate occasions in June and July 2013.

The lawyer first attended a probation violation hearing and stood with the client, admitting the probation violation on the client’s behalf, and speaking for the client.  The client’s girlfriend and stepfather testified before the professional conduct board that they paid the lawyer $450.00 for the representation (for both the lawyer’s previous representation and for future representation) and that the lawyer did not inform them that his license was suspended.

Two days after the probation hearing, the lawyer appeared with the client a second time on unrelated charges in another court.  An audio recording of the client’s arraignment indicated the lawyer spoke on the client’s behalf.  He told the magistrate that he was not the client’s attorney and the client was representing himself as the two worked out their business relationship. The magistrate told the board that the lawyer did not indicate that his license was suspended.

About a month later, the lawyer attended a hearing with the client a third time, answered questions on his behalf, and entered a plea to a violation of probation for the client before the judge.  The prosecutor and judge in that case both told the board that they believed that the lawyer was representing the client.  The judge became suspicious and asked his assistant to research the lawyer and found out that he was suspended.

When confronted with the allegations that he had represented the client in a deposition in the Bar matter, the lawyer denied under oath that he appeared with the client at the probation violation hearing or municipal court proceedings, and claimed that he told the client’s family that his license was suspended and that he was not paid for his legal work.  The opinion stated:  “All of these statements (by the lawyer) were later contradicted by testimonial, video, audio, and documentary evidence presented at the disciplinary hearing.”

The board found the following aggravating circumstances: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary process, the submission of false statements during the disciplinary process, and a refusal to acknowledge the wrongful nature of the conduct.  Although the board acknowledged that the lawyer had been involved with the Ohio Lawyers Assistance Program, it found no mitigating factors.

The lawyer objected to the board’s finding that he practiced law while suspended and argued that his actions in the second appearance did not constitute the “practice of law” since he did not advocate for the client, cross-examine any witnesses, cite legal authority, or handle any legal documents.  The opinion rejected that argument and cited Cleveland Bar Assn. v. Comp Management, Inc., a 2006 case stating that the practice of law is not limited to advocacy or filing of legal documents, but also includes representation before a court, preparation of legal documents, management of client actions, all advice related to law, and all actions connected with the law taken on a client’s behalf.  “Here, the evidence demonstrated that the lawyer accompanied the client to the court, stood with him before the bench, spoke on his behalf, waived his legal rights as a criminal defendant, and entered a plea for him.  Under any definition, the lawyer’s appearance on behalf of the client constituted the practice of law.”

The lawyer claimed that he had been “sandbagged” by the bar association which investigated the Bar matter because the case against him did not originally contain the video of his appearance at the probation hearing. The bar association later supplemented its case with the video, and the lawyer had more than two weeks to review it before his disciplinary hearing. The opinion found that the lawyer did not provide any explanation to support the allegation that the introduction of the video prevented him from adequately defending himself against the charges.

The lawyer argued that he should not be disbarred because his actions involved a single client who benefited from his assistance and that he helped the client for “sympathetic and altruistic reasons.”  He also argued that he cooperated during the disciplinary process and had a history of providing quality legal services to indigent clients, and other lawyers charged with the same misconduct were not disbarred.  His lawyer argued at the oral argument that he had psychological and/or other issues and was participating in Ohio’s lawyer assistance program, and that the indefinite suspension should be again imposed.

The majority of the justices disagreed and permanently disbarred the lawyer stating:  “Less than three months after our order forbidding Pryatel to appear on behalf of another before any court, he represented a client in three court proceedings. As the board found, his actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”  Three justices dissented, stating that the indefinite suspension should be continued.

Bottom line: This lawyer had the apparent audacity to represent a client on 3 different occasions and in 2 separate cases beginning less than 3 months after he was indefinitely suspended from the practice of law for, among other things, misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  As the opinion states: “(the lawyer’s) actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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