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According to the opinion, the lawyer had posted multiple excerpts of unpublished and public judicial opinions related to fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination on his law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

Kentucky lawyer permanently disbarred after pleading guilty to felony “flagrant non-support” for failing to pay over $200,000.00 in child support

Hello everyone and welcome to this Ethics Alert blog which will discuss a recent Kentucky Supreme Court opinion disbarring a lawyer after the lawyer pled guilty to felony “flagrant non-support for failing to pay over $200,000.00 in child support. The case is Kentucky Bar Association v. Daniel Warren James, Case No. 2014-SC-000499-KB (Ky. SC February 19, 2015) and the opinion is here: http://opinions.kycourts.net/sc/2014-SC-000499-KB.pdf.

According to the opinion, the lawyer pled guilty in 2012 to a felony charge of “flagrant non-support”, received 5 years in prison with probation for 10 years and was ordered to pay $233,000.00 in restitution. On February 8, 2013, after the plea was entered, the Kentucky Bar Association Inquiry Commission filed a complaint against the lawyer and he failed to respond.

On March 11, 2014, the Commission filed formal charges against the lawyer. Count I alleged misconduct for committing a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer and Count II alleged misconduct for knowingly failing to respond to the February 8, 2013 complaint. The lawyer again failed to respond and was defaulted.

The lawyer had previously been suspended for five years for a multiple acts of misconduct, including not returning unearned fees, misappropriating client money for personal use, and altering billing statements. The lawyer admitted that misconduct and claimed that it was a result of the discontinuation of medication that he was taking for a mental health condition. As a condition of that suspension, the lawyer agreed to seek treatment through Kentucky Lawyer Assistance Program (KYLAP) and to continue treatment as needed during the suspension period.

On August 21, 2014, the Kentucky Board of Governors filed its Findings of Fact, Conclusions of Law and Recommendations with the Supreme Court and unanimously recommended that the lawyer be found guilty and that he be permanently disbarred. In aggravation, the Board noted the $233,000.00 child support arrearage that the lawyer had failed to pay over a thirteen year period, his prior discipline, most of which involved the misuse of client funds, and his failure to respond to his clients and the Bar.

The Supreme Court opinion noted that a lawyer in Kentucky had never been disciplined for criminally failing to pay child support; however, it found that the conduct violated the lawyer’s duty “’to conduct (his) personal and professional life in such manner as to be above reproach’. Grigsby v. Kentucky Bar Ass’n, 181 S.W.3d 40, 42 (Ky. 2005). ‘Failing to pay court ordered child support encompasses several breaches, including: failure to satisfy the statutory obligation of supporting one’s child; failure to follow a court order; and violation of the attorney’s duty recognized in Grigsby.’” The lawyer was permanently disbarred.

Bottom line: This sole practitioner apparently had serious mental health issues which destroyed his practice and resulted in his permanent disbarment. All lawyers, especially solos, must address the extreme stress involved in the practice of law and be fully aware of the consequences of personal and professional misconduct (including willful or “flagrant” failure to pay child support) that may be triggered due to the stress of practice (and life) and seek medical help.

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 discipline, Attorney Ethics, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer criminal conduct, Lawyer disbarment, Lawyer discipline, Lawyer discipline for criminalconviction, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer flagrant and willful failure to pay child support, Lawyer Professionalism, Lawyer sanctions, Lawyer wilful failure to comply with court order

Florida Bar will not appeal Federal judge’s order enjoining enforcement of past results rule as applied by Bar guidelines

Hello everyone and welcome to this Ethics Alert with an update on the December 8, 2014 Federal Judge’s opinion which enjoined The Florida Bar from enforcing its guidelines regarding past results in attorney advertising in indoor and outdoor display, television and radio media as a violation of the First Amendment. The order/injunction is in the case of Robert Rubenstein v. The Florida Bar, Case No. 14-CIV-20786-BLOOM/Valle (U.S.S.D. Fla. 12/8/14).

As I reported in my 12/18/14 Ethics Alert blog, a Florida lawyer (Rubenstein) filed a federal lawsuit in the Southern District of Florida against The Florida Bar challenging the constitutionality of the Bar’s guidelines prohibiting the use of past results in lawyer advertising in indoor and outdoor display, television and radio media. The lawyer filed a motion for summary judgment and, in her Order/injunction dated December 8, 2014, Federal District Judge Beth Bloom granted a summary judgment in favor of the Florida lawyer and ruled that The Florida Bar rules prohibiting the use of past results in lawyer advertising as applied by the Bar’s guidelines were unconstitutional and violated the First Amendment of the U.S. Constitution.

In response to the federal District Judge’s order and injunction, the Bar’s Board of Governors repealed the guidelines on using past results in indoor and outdoor display, radio, and television advertising; however, the Board has indicated that such advertisements must still be objectively verifiable and make no material omissions.

According to a recent ABA online article: “’The bar will not appeal,’ says Barry Richard, a shareholder at Greenberg Traurig in Tallahassee who was lead attorney for the bar in Rubenstein. ‘The board of governors has repealed the rule that was at issue.’”

The ABA article also states: “Deepak Gupta, the founding principal of Gupta Beck in Washington, D.C., which represented Rubenstein, says, “This decision is likely to have a major national impact. It says to state bar regulators across the country: ‘Don’t try this at home. If you’re considering emulating Florida’s restrictive approach, you will face a First Amendment challenge and you will lose.'” The ABA article is here: http://www.abajournal.com/magazine/article/federal_court_strikes_down_florida_bar_restrictions_on_lawyers_citing_past

Bottom line: The Court’s Order/injunction and the Bar’s repeal of the application of the Bar rule in its guidelines for advertising past results is certainly a victory for the lawyer/plaintiff in this case and may leave the door open to other challenges to The Florida Bar’s advertising rules.

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 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising past results, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism

Florida Supreme Court rejects referee’s recommendation of public reprimand and suspends lawyer for 10 days for failing to appear at hearing

Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court disciplinary opinion which rejected a referee’s recommendation of a public reprimand and suspended a lawyer for 10 days for failing to appear at a hearing. The disciplinary opinion is The Florida Bar v. Daniel Mark Cohen, No. SC12-2724 (February 12, 2015) and the disciplinary opinion is online here: http://www.floridasupremecourt.org/decisions/2015/sc12-2724.pdf

According to the opinion, the lawyer was retained to represent a client at a resentencing hearing in the client’s resentencing in a criminal case. On March 15, 2012, a Notice of Hearing was mailed to the lawyer stating that the resentencing hearing was scheduled for March 28, 2012. The lawyer received the Notice on March 19, 2012. The lawyer filed a “Motion to Continue Resentencing Hearing and Notice of Unavailability” on March 19, 2012 which stated that the notice provided for the resentencing hearing was not reasonable and that he did not have adequate time to prepare.

The motion also stated that the lawyer was unavailable on March 28, 2012 since he had previously been retained to prepare a petition for writ of certiorari on behalf of another client. The motion did not state whether the prosecutor had agreed to the continuance. A copy of the motion was submitted directly to the presiding judge and the motion was not scheduled for a hearing.
The hearing was not continued and, on, the day the hearing was scheduled, the judge traveled from the county where he was then assigned to the county where the hearing was to take place. The judge had also reserved a courtroom and scheduled court staff in order to conduct the hearing. The prosecutor, the client, and the client’s former appellate attorney appeared for the hearing; however, the lawyer did not appear and the judge rescheduled the hearing for a later date.

The presiding judge in the criminal case testified at the Bar hearing that if the lawyer had appeared at the hearing and requested a continuance, he would likely have granted it and the prosecutor also testified that she would have had no objection to the request for a continuance. The referee found that the lawyer had substantial experience in the practice of law and specifically in the practice of criminal law, and the he should have known that the motion to continue would not automatically be granted. Further, the resentencing hearing was properly noticed and had not been continued; therefore, the lawyer was required to appear. The presiding judge also stated that the lawyer made no personal effort to contact the presiding judge to explain his absence after the hearing date and the judge then reported the matter to The Florida Bar.

The referee recommended that the lawyer be found guilty of violating Florida Bar Rules: 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). The referee also found five mitigating factors: no prior discipline; personal or emotional problems; cooperative attitude during the disciplinary proceeding; good character and reputation; and remorse. The referee found two aggravating factors: substantial experience in the practice of law and refusal to acknowledge the wrongful nature of his misconduct.

The referee also found that the lawyer’s conduct caused harm to the legal system: “While minimal direct prejudice, harm or injury resulted to (the client), the Respondent’s actions ultimately required (the client’s) resentencing hearing to have to be postponed. The delay to the court system was proven and evident. Continuing court hearings and having litigants come to court without being able to resolve the issues result in undue hardship to the administration of justice. This also results in additional expense and unnecessary use of work hours and administrative functions, such as the transportation of inmates (in this case [the client] was an inmate and had to be transported for the hearing). Thus, the Respondent’s ethical misconduct is harmful to the legal system and cannot be tolerated by an officer of the court.”

As to discipline, the referee recommended that the lawyer receive a public reprimand before The Florida Bar Board of Governors, that he obtain an evaluation by Florida Lawyer’s Assistance, Inc. (FLA) and abide by all of FLA’s recommendations, including a contract if necessary, schedule a review by the Law Office Management Assistance Service (LOMAS), and fully comply with its recommendations, and pay the Bar’s costs in the amount of $2,830.28. The lawyer filed a Notice of Intent to Review the recommendation. The Court subsequently issued an order directing the lawyer to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction imposed and the lawyer filed a response.

The disciplinary opinion approved the conditions recommended by the referee but rejected the public reprimand and imposed a 10 day suspension. “Although Cohen’s misconduct was relatively minor, and did not cause his client any actual harm, it was nonetheless harmful to the administration of justice and we conclude that his actions warrant harsher discipline than a public reprimand. See Fla. Stds. Imposing Law. Sancs. 6.22 (“Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.”). Cohen’s failure to attend the resentencing hearing was knowing and intentional. Moreover, the referee found that Cohen did not have a conflicting court date; rather, he was working on a filing for another client. Ultimately, Cohen simply chose not to attend a hearing that he knew was scheduled in his client’s case and had not been continued. We agree with the referee’s conclusion that Cohen’s actions were harmful to the legal system and that such conduct cannot be tolerated by an officer of the Court. Thus, we conclude a ten-day suspension is appropriate.”

Bottom line: This is yet another example of the Florida Supreme Court increasing the disciplinary sanction recommended by the referee, in this case, from a public reprimand to a 10 day suspension, because the lawyer’s “actions were harmful to the legal system and such conduct cannot be tolerated by an officer of the court.”

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 discipline, Attorney Ethics, Florida Bar, Florida lawyer discipline for failure to appear at hearing, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline sanctions for failure to appear at hearing, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Louisiana Disciplinary Board recommends year and one day suspension for lawyer who allegedly offered bribe to a witness and lied about it

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Attorney Disciplinary Board Recommendation of a one year and one day suspension for, inter alia, alleged attempts to bribe a witness and false statements denying the misconduct. The disciplinary opinion is In re: Donald R. Pryor, No: 13-DB-036 (February 5, 2015) and the disciplinary recommendation is online here: https://www.ladb.org/DR/handler.document.aspx?DocID=8353

According to the Recommendation, the Disciplinary Committee found that the following facts were established: “Respondent represented Ms. Winborn, who was charged with simple burglary of an inhabited dwelling in the criminal proceeding State of Louisiana v. Emily Winborn, Case Number 498-791, Sec. A, of the Criminal District Court for the Parish of Orleans. Mr. Bode’s neighbor saw Ms. Winborn exiting Mr. Bode’s house carrying the black camera bag where he kept his gun. When Mr. Bode returned home after the neighbor called him, he discovered that his gun was gone. Ms. Winborn was charged with entering Mr. Bode’s home and stealing a gun. Respondent came to a restaurant Mr. Bode owns with his daughter and offered him $300 to drop the charges against Ms. Winborn. During the first visit Mr. Bode told Respondent that he had found the gun and that he would not drop the charges. The day before Ms. Winborn’s trial, Respondent came to the restaurant again and offered Mr. Bode $500 not to show up in court for Ms. Winborn’s trial. Ms. Winborn was convicted of the crime.” (emphasis supplied)

The Disciplinary Committee found that “(t)his matter came down to credibility. Mr. Bode was a credible witness, with no apparent motive to lie about his interactions with Respondent. For the most part, Respondent admitted to the facts as Mr. Bode related regarding the two visits at the restaurant. The significant divergence was that Respondent contended that the payment was only restitution, and whether Respondent offered $500 to induce Mr. Bode to fail to appear at the trial.”

“(A)fter hearing the testimony, observing the witnesses demeanors, and considering the logical interpretation of the interactions, the Committee finds that Respondent went to visit Mr. Bode at the restaurant where he worked and offered him $300 as payment if he would to agree to drop the charges against Ms. Winborn. Although Respondent calls the $300 an offer of restitution, it clearly was conditioned upon Mr. Bode agreeing to drop the charges. When Mr. Bode refused, he was not paid the ‘restitution.’ Moreover, payment for the loss of the gun was not necessary because Mr. Bode told Respondent that he had found the gun.”

“The second visit, which occurred ten days later and the day before the trial, included an increased offer of $500 as payment for not showing up on the day of trial. Although Respondent attempted to show that Mr. Bode’s memory was failing, the details he did remember – along with a lack of true motive to lie either at trial or the hearing – leads the Committee to believe Mr. Bode’s version of the facts.”

“Thus, clearly the initial $300 was offered not as “restitution,” but strictly as a bribe for Mr. Bode to dismiss the charges against Respondent’s client. In addition, the $500 was offered, on the day before the trial, and as a last resort, so that Mr. Bode would not appear at the trial and thus make it more likely that the charges would be dropped. Respondent’s conduct was a criminal act reflecting adversely on Respondent’s honesty, trustworthiness and fitness as a lawyer, and was conduct prejudicial to the administration of justice. His testimony at the hearing also involved dishonesty, fraud, deceit or misrepresentation.

The Disciplinary Committee recommended that the lawyer be disbarred. The Disciplinary Board adopted the Disciplinary Committee’s finding of fact and conclusions of law and finding that Respondent violated Rules 8.4(a) through (d). After confirming that “(i)t is well-settled that the baseline sanction for misconduct arising out of felony convictions involving bribery is disbarment” and discussing the mitigating and aggravating circumstances, the Disciplinary Board reduced the recommended discipline to a suspension of one year and one day, which would require a showing of rehabilitation.

Bottom line: According to the Louisiana Disciplinary Board Recommendation, this lawyer offered a bribe to a witness to “fail to appear at trial” and engaged in misrepresentation, fraud, deceit, or misrepresentation by denying that he offered the bribe. Notwithstanding these facts, the Board surprisingly reduced the recommended discipline from disbarment to a suspension of one year and one day. The Louisiana Supreme Court will now review the recommendation and issue a final disciplinary opinion.

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 discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false testimony, Lawyer misrepresentation, Lawyer sanctions