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According to the opinion, the lawyer had posted multiple excerpts of unpublished and public judicial opinions related to fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination on his law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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Florida woman who failed Florida Bar examination and started fictitious law firm charged with federal felonies

Hello everyone and welcome to this Ethics Alert, which will discuss federal criminal charges filed against a woman who failed the Florida Bar examination, started a fraudulent law firm, engaged in the unlicensed practice of law, and committed aggravated identity theft and mail fraud.

According to the federal charges and Florida Bar records, Roberta Guedes attended Stetson law school with Agnieszka Piasecka and both graduated in 2014. They had planned to open a law firm together; however, Guedes did not pass the Florida Bar examination.  Piasecka passed the Bar examination and opened her own law firm, which handled wills and trusts, immigration, and dissolution matters.  Guedes offered Piasecka the free use of an office in Tampa and Piasecka used the office a few times to meet with clients.

According to court records, in September 2014, Guedes incorporated an entity she called Ferguson and McKenzie LLC and listed Piasecka as a registered agent without her knowledge. She also listed another individual, Arlete Chouinard, as a vice president and manager for the business without her knowledge.

In November 2014, Guedes incorporated another entity, Immigration and Litigation Law Office, Inc., and again listed Piasecka and Chouinard as officers. The incorporation documents listed a Tampa address.  Guedes used Chouinard’s name, social security number and other personal information to open bank accounts and multiple lines of credit and used the accounts for personal and business expenses for the two “firms”.

Guedes advertised the “firm’s” legal services, printed and handed out business cards bearing Piasecka’s name and her own, and created a website for the immigration “firm” which falsely listed Piasecka as an attorney.  Guedes also accepted fees to represent clients in legal matters.

An individual retained Guedes to assist her to bring her Brazilian daughter to the U.S.  The records related to the immigration matter had Guedes’ name and signature; however, it listed Piasecka’s Florida Bar number.

Another individual hired Guedes to help with a divorce from his Brazilian wife and she traveled with the man to an immigration hearing in Orlando and appeared before Immigration Judge Daniel Lippman.  Guedes represented herself as Piasecka at the hearing and also posed as Piasecka in a telephone call with the judge a few weeks later.

Guedes also appeared in a Hillsborough courtroom in December 2015 with a Tampa man who had sought her help in filing a domestic violence petition and who did not know she was not a lawyer.  She attempted to contact Judges Frances Perrone and Chet Tharpe requesting that his two cases be heard on the same day.

Judge Perrone granted this individual’s request for a temporary injunction and directed her judicial assistant to give his “lawyer” a courtesy call.  The judge and her judicial assistant could not find Guedes name listed as a Florida lawyer.  The judge’s office found Guedes’ telephone number through an internet search and, when the judge’s judicial assistant asked Guedes if she was a lawyer, she replied: “You can just scratch through that part (her signature on the court document).

The Florida Bar filed a 6 count petition with the Florida Supreme Court on May 14, 2018 alleging that Guedes engaged in the unlicensed practice of law.  The petition alleged that “Guedes accepted money and purported to represent “clients” in immigration and family law cases and failed to disclose that she was not licensed to practice. The Bar’s petition is here: https://efactssc-public.flcourts.org/CaseDocuments/2018/728/2018-728_Petition_69809_PETITION2DUPL.pdf.

Guedes initially denied the allegations in the Bar’s petition and claimed that she had only assisted clients with court paperwork and translation services; however, in a Stipulation for Permanent Injunction filed with the Florida Supreme Court on March 22, 2019, Guedes agreed to refund the money that she had taken from the “clients” and a permanent injunction prohibiting her from holding herself out as a lawyer in the future.

The Florida Supreme Court issued an Order on May 2, 2019  permanently and perpetually” enjoining Guedes from engaging in the practice of law and requiring restitution in the amount of $3,782.00 as well as a $6,000.00 civil penalty.

Guedes signed a plea agreement on October 30, 2019 admitting to the federal charges of mail fraud and aggravated identity theft and a sentencing hearing has been scheduled for December 2019 in Tampa.  She faces a minimum of two years in prison.

Bottom line:  This lawyer completed law school and failed the Florida Bar examination; however, she was able to engage in the unlicensed practice of law in both state and federal immigration courts beginning in 2014.  The unlicensed practice of law was discovered by a Hillsborough County Circuit Court judge and was reported to The Florida Bar.  She was also investigated by federal prosecutors and charged with criminal fraud and identity theft and she will be sentenced on those charges in federal court in Tampa in December 2019.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under .S. Supreme Court, deceit, dishonesty, Federal felonies- UPL and federal U.S. mail identity fraud, Florida Bar, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Non-lawyer unlicensed practice of law creation of false law firm, Uncategorized, Unlicensed practice of law, UPL fraud impersonating lawyer

Pennsylvania lawyer disbarred after practicing law for 17 years while under administrative suspension

Hello everyone and welcome to this Ethics Alert, which will discuss a recent disbarment of a lawyer who continued to practice law for 17 years while suspended for failing to pay the annual registration fee.  The case is Office of Disciplinary Counsel v. Jason Michael Purcell, No. 2651 Disciplinary Docket 3, No. DB 2018 and the October 31, 2019 Pennsylvania Supreme Court Order disbarring the lawyer with the detailed Report and Recommendations of the Pennsylvania Disciplinary Board dated September 4, 2019 is here:  http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/142DB2018-Purcell.pdf

According to the Disciplinary Board Report, the lawyer was suspended on December 1, 2002, for failing to pay his annual attorney registration fee; however, he continued to claim that he was a practicing attorney through social media.  He claimed on LinkedIn that he had “15-plus years of diverse legal experience” and that he was licensed to practice in California, Maryland, New York, Pennsylvania and the District of Columbia.

The lawyer also falsely claimed that he held several jobs in the legal field, including working as in-house counsel and an associate broker for a private boutique real estate firm in New York from 2012 to 2017.  The Report also found that the lawyer had appeared as counsel in a drunken driving case and custody matter in 2005, worked as counsel of record in a drug case, and helped prepare a petition to recanvass voting machines in 2006.

The lawyer also represented an individual in an abuse protection matter in 2018 and told the judge in that matter that he had been reinstated; however, he never provided any documents showing that he had been reinstated.

According to the Report: “During his lengthy period of administrative suspension, respondent engaged in serious professional misconduct by continuing to hold himself out to the public as an active member of the Pennsylvania Bar and representing clients in at least five legal matters in the Commonwealth of Pennsylvania.”

The lawyer was also convicted of driving under the influence of alcohol twice and he was charged with a third DUI in 2006; however, he failed to appear in the case.

The lawyer failed to respond to the disciplinary charges and did not appear at the disciplinary hearing.  The Supreme Court adopted the findings in the Board report and disbarred the lawyer.

Bottom line:  It is very surprising, to say the least, that this lawyer was able to practice for 17 years while under suspension for failing to pay his annual attorney registration fee.  It is somewhat more surprising that the lawyer did not address and pay the registration fee and request reinstatement.  Finally, it is surprising that the lawyer failed to participate in the disciplinary proceedings; however, this may be at least partially explained by the fact that he was convicted of driving under the influence of alcohol twice and was charged with a third DUI in 2006, but failed to appear.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, false statements, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment for practicing while suspended, Lawyer discipline, lawyer discipline for failure to respond to complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer misleading law firm information in advertising, Lawyer sanctions, Lawyer social media ethics, Lawyer unauthorized practice of law while suspended, Lawyer unlicensed practice of law, Lawyer violation of court order, Pennsylvania lawyer disbarred for practicing law while under administrative suspension, Uncategorized

Ransomware attack against South Florida digital record storage entity block law firm’s access to electronic records

Hello everyone and welcome to this Ethics Alert, which will discuss a recent Miami Herald article discussing a ransomware attack against a South Florida software company that manages electronic records for thousands of law firms nationwide in which digital legal documents have been held hostage.  The October 25, 2019 Miami Herald article is here:  https://www.miamiherald.com/news/local/article236645058.html

According to the Herald article, “a Florida law firm was forced to request more time to meet a filing deadline in a gender-discrimination employment case in federal court because it could not access its electronic documents stored with TrialWorks.”  “The firm’s attorney representing the deputy (in the Citrus County federal gender discrimination lawsuit) cited the TrialWorks’ software problem, saying the company ‘has shut down access’ to critical documents in the case. The law firm needed the documents to address a dispute over the testimony of an expert witness for Citrus County. Its response was due Friday (October 25, 2019).”

“Since Oct. 11, 2019, plaintiff’s counsel, as well as other TrialWorks clients, have been unable to access documents,” says the law firm’s motion requesting more time. “As of Oct. 24, 2019, plaintiff’s counsel remains unable to access all the necessary documents required to respond.”  “The deadline issue was quickly resolved because attorneys for Citrus County did not oppose the law firm’s request. Melton’s firm has until Nov. 14 to respond, assuming it can gain access before then to crucial records at TrialWorks.”

The article also states:  “TrialWorks acknowledged it ‘was recently targeted by a ransomware incident that did not affect our software but did prevent approximately 5 percent of our customers … from accessing their accounts.’”  “In a statement, the company said it started an internal investigation and retained independent cybersecurity experts. “We have been working around the clock to restore normal operations for our customers as quickly as possible, and nearly all customers have had access restored within a week.”  “Company officials said they have not contacted federal authorities about the ransomware attack but plan to share information from the internal investigation with law enforcement.”

“Earlier this month, TrialWorks began alerting its customers about the security breach and initially indicated it was caused by a Microsoft service outage affecting Outlook desktop and mobile apps, according to court records. But the company’s customer alerts became more ominous over the past two weeks, including one that cited a ‘ransomware incident.’”

Bottom line:  This unfortunate ransomware incident highlights the vulnerability of digital information, including information stored digitally by litigation document assistance providers such as TrialWorks.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, Florida Lawyer Ethics and Professionalism, fraud, joe corsmeier, Joseph Corsmeier, Lawyer competence technology, lawyer confidentiality, Lawyer digital document protection, Lawyer digital document security breach, Ransomware attack, Uncategorized

The client is missing and the statute of limitations expires soon:  what can or must a lawyer do?

Hello everyone and welcome to this Ethics Alert, which will discuss the ethics issues when a client is missing (or refuses to communicate) and the statute of limitations is about to expire.  I have been asked this question (or a variation of it) many times in my over 30 years of practice and I have provided guidance to lawyers.  Florida Bar Ethics Opinion 72-36 RECONSIDERATION) July 1, 1987 addresses this issue and the opinion is here: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-36-Rec.pdf

In the initial Ethics Opinion 72-36 (published in 1972), the facts were that “the inquiring attorney was retained by his client under a contingent fee contract in a personal injury matter. The client disappeared sometime after retaining the attorney and before suit was filed. Two years passed and, despite his diligent efforts, the attorney was unable to locate the client. The attorney asked whether he was ethically obligated to file suit before the limitations period expired.”

The initial opinion stated that “the attorney’s duty of zealous representation required him to take whatever action was necessary to prevent loss of the client’s rights due to the passage of time. Specifically, the attorney was obligated to file suit unless he could obtain the opposing party’s agreement to waive the statute of limitations.”  Emphasis supplied.

After the Florida Ethics Opinion was published in 1972, ABA Informal Opinion 1467 was published, which stated that the ABA Committee on Ethics and Professional Responsibility had determined that an attorney has no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect.

After the ABA Informal Opinion was published, the Florida Bar’s Professional Ethics reconsidered Ethics Opinion 72-36.  After reviewing the facts and Informal Opinion 1467, the committee stated:

“The Committee is now in accord with the conclusions reached in ABA Informal Opinion 1467. There, the attorney’s reasonable efforts to locate the client had been unsuccessful and the attorney believed there was no reasonable likelihood that the client would return. The ABA Committee on Ethics and Professional Responsibility determined that the attorney had no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect. The ABA committee further stated that it was not improper for an attorney to include in his employment agreement a provision requiring the client to promptly notify the attorney of any change in address and providing that, if the client failed to so notify the attorney, the attorney was not obligated to proceed with the case.

In view of ABA Opinion 1467, the Professional Ethics Committee is now of the opinion that an attorney whose client cannot be located despite the attorney’s reasonable efforts is not obligated to file suit to toll the running of the statute of limitations if the client’s unavailability is not caused by the attorney’s neglect or inaction (see Rule 4-1.3, Rules Regulating The Florida Bar, requiring an attorney to act with reasonable diligence and promptness in representing a client) and: (1) the attorney believes there is no reasonable chance the client will return; or (2) the client’s unavailability is a breach of the attorney-client employment agreement. However, even in these situations it would not be unethical for the attorney to file suit in order to toll the statute of limitations.”

The executive summary of Ethics Opinion 72-36 (RECONSIDERATION) states:  “A lawyer retained for litigation by a client who has since disappeared is not obligated to file suit to toll the running of the statute of limitations if the lawyer has made a reasonable effort to locate the client and the client’s unavailability is not the result of neglect on the part of the lawyer.”

Bottom line:  Although ethics opinions are for guidance only and are not binding, the Florida Ethics Opinion (and the ABA Informal Opinion) makes it clear that al lawyer is not required to file a lawsuit on behalf of a client when the client is unavailable and cannot be located, even if the statute of limitations will run; however, the lawyer is also not ethically prohibited from filing the lawsuit.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under ABA Informal Opinion 1467- filing lawsuit when client is missing, Attorney Ethics, Florida Bar, Florida Bar Ethics Opinion 72-36 - filing lawsuit when client is missing, joe corsmeier, Joseph Corsmeier, Lawyer diligence, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer negligence, Uncategorized

Florida Bar Board of Governors finds that “Ambulances Chase Us” is improper and law firm can advertise “1-800-411-Pain”

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG) decisions to uphold the Florida Bar Standing Committee on Advertising (SCA) decision that “Ambulances Chase Us” is deceptive or misleading and reverse an SCA decision that a law firm’s billboards advertising the telephone number “1-800-411-PAIN” are misleading.

At its September 20, 2019, the BOG voted to uphold an SCA decision that the slogan “Ambulances Chase Us ”is deceptive or misleading under Rule 4-7.13(a) because it is “both unethical and illegal for ambulance drivers to solicit cases for lawyers and because it is factually and legally inaccurate.”

The Board Review Committee on Professional Ethics (BRC) voted to uphold the SCA finding that the advertisement is impermissible.  The BOG voted 18-14 to uphold the SCA finding.

At the same meeting, the BOG also voted, without debate, to reverse an SCA determination regarding billboards that advertise the telephone number “1-800-411-PAIN.”  As background, the SCA had voted to find that billboards are misleading under Bar Rule 4-7.13(a) because the advertisements are on behalf of the private law firm but advertise the telephone number “1-800-411-Pain” in North and Southwest Florida which was used by the now-defunct lawyer referral service called 1-800-411-Pain.  The telephone number is also currently being used by a new qualifying provider/lawyer referral service called “Path” in Southeast and Central Florida.

The law firm had argued, inter alia, that the advertisements were not misleading because they clearly show the law firm’s name. The law firm also stated that, at the BRC’s request, it will answer the telephone with the law firm’s name.

Bottom line:  There was apparently some discussion at the BOG meeting that the “Ambulances Chase Us” slogan was just an attempt at humor and was not misleading and the final 18-14 BOG vote was very close.  The 411 Pain vote reverses the SCA determination that the use of the telephone number was misleading.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Florida lawyer advertising "411-Pain", Florida lawyer advertising "Ambulances Chase Us", Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Lawyer advertising, Lawyer advertising rules, Uncategorized

The Florida Bar’s Board of Governors votes to recommend a voluntary registration program for online legal service providers

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG) decision to recommend a voluntary registration program for online legal service providers.

The BOG voted unanimously at its meeting on September 20, 2019 to approve “Chapter 23, Registered Online Services”.  The program was first considered by the BOG Committee on Technologies Affecting the Practice of Law and, if implemented, would allow online legal service providers to market themselves as “Registered with The Florida Bar” if they agree to follow certain requirements, including submitting to the jurisdiction of Florida for the resolution of consumer complaints.

According to Florida Bar President, John Stewart, the proposed program would apply to entities that are “already operating in a largely unregulated environment”.  The program would also require online providers to provide The Florida Bar with copies of all consumer complaints, indicate how they were resolved, and provide a certification that the provider understands that the “registration and revocation of the registration . . . is solely at the discretion of The Florida Bar.”

The proposed program would also require that registered online providers use only forms that have either been approved by the Florida Supreme Court or reviewed and approved by lawyer and a member of The Florida Bar. The registered online legal service providers would also be required to advise consumers of the type of form that they are providing.

The BOG was scheduled to take final action on the proposal at the July 2019 meeting in Key Largo; however, this was postponed due to a lack of time. The proposed program was also publicly noticed multiple times and received no comments. The proposed program will now be sent to the Supreme Court for consideration and potential implementation.

Bottom line:  This proposed program to related “online legal service providers” is voluntary (and would presumably create a safe harbor if the requirements were followed); however, it may also be a step toward the actual regulation of such entities.  In addition, if the program is approved by the Florida Supreme Court, the online entities could market themselves as “Registered with The Florida Bar” if they follow the program requirements, including submitting to the jurisdiction of Florida for the resolution of consumer complaints  This may provide an incentive for such entities to participate in the program.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney Ethics, Florida Bar, Florida Bar Board of Governors online legal provider registration program, Florida Bar Chapter 23, Registered Online Services, Florida Supreme Court, Florida voluntary online legal providers program, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Iowa lawyer suspended for 4 months without possibility of reinstatement for misappropriating fees from his law firm

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Iowa Supreme Court opinion which suspended a lawyer for 4 months without the possibility of reinstatement for misappropriating fees from his law firm and stated that “(w)e think the time has come to ratchet up the disciplinary sanctions for nonclient theft.”  The case is Iowa Supreme Court Disciplinary Board v. Curtis Den Beste, No 19-0360.  The September 13, 2019 Iowa Supreme Court opinion is here: https://www.iowacourts.gov/courtcases/7209/embed/SupremeCourtOpinion.

The lawyer began practicing law in Iowa in 2000.  He received an offer in 2007 to practice with a law firm and entered into an agreement with the law firm regarding fees.  The agreement required him to deposit all earned client fees into the firm trust account or the general/operating account and he would be paid fifty percent of the earned fees and the firm would keep the remainder.

Beginning in 2015, the lawyer accepted cash payments for fees from some clients and kept the fees instead of depositing them as required by his agreement with the firm.  According to the opinion, after his misconduct was discovered, “(the lawyer) agreed to self-report his misconduct to the disciplinary board and to provide an accounting of the diverted funds as well as a repayment plan.”

The lawyer’s accounting (which was confirmed by the Iowa Bar/Disciplinary Board) showed that he received a total of $18,200.00 and, after for the fifty-percent split and other tax and reimbursement considerations, the lawyer wrongfully misappropriated $9,200.00 from the law firm.

“It is certainly true that, in many cases, fee disputes between a lawyer and his or her current or former law firm might simply be contract disputes and nothing more. For example, a lawyer with a good-faith claim to fees should not be sanctioned merely for exercising or asserting such a claim. But not all fee disputes between a lawyer and a law firm are garden variety contract disputes. Some involve outright and undisputed theft. In such cases, the imposition of discipline is clearly appropriate.”

“The question then arises whether theft from a client is more serious than theft from a law firm or other third party. In our prior cases, the difference has often been dramatic. Theft of any amount by a lawyer from a client ordinarily results in revocation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 925 N.W.2d 163, 170–71 (Iowa 2019); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500–01 (Iowa 2017). But theft of funds from a law firm can result in much lesser sanctions. Henrichsen, 825 N.W.2d at 529–30.”

“There are, perhaps, some reasons for the distinction between client theft and law firm theft. For instance, many clients have little power against a lawyer in whom the client places trust. A lawyer who steals from a client is preying on those often in an extremely vulnerable position who have placed trust in the lawyer and advanced funds to the lawyer to protect their interests. The relationship between a law firm and a lawyer ordinarily will have less of a power imbalance. The firm is in a better position, perhaps, than a client to monitor the proper handling of fees.”

“Yet, a lawyer who acts dishonestly toward an employer raises serious questions of whether the lawyer has the necessary integrity to practice law.”

“(W)e think the time has come to ratchet up the disciplinary sanctions for nonclient theft. That said, this case may not be the appropriate case to do so. In particular, given our caselaw, Den Beste was not on notice that he faced a possible revocation when he entered into the stipulation in this case. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cepican, 861 N.W.2d 841, 845 (Iowa 2015) (finding the attorney did not waive his right to contest a complaint of theft-based misconduct by failing to respond because he did not receive adequate notice of the allegation of theft). Thus, we rely on our precedent and impose a sanction in this case consistent with our prior cases. At the same time, we use this case as a vehicle to put the bar on notice that an attorney who steals from a law firm without a colorable claim may well incur stiffer disciplinary sanctions than have been imposed in our past cases.”

Thus, we rely on our precedent and impose a sanction in this case consistent with our prior cases. At the same time, we use this case as a vehicle to put the bar on notice that an attorney who steals from a law firm without a colorable claim may well incur stiffer disciplinary sanctions than have been imposed in our past cases.

“Upon full consideration of this matter, we order that the license of Curtis W. Den Beste to practice law in Iowa be suspended indefinitely with no possibility of reinstatement for a period not less than four months, effective with the filing of this opinion.”

A dissenting justice would have revoked the lawyer’s license to practice law.

“On multiple occasions, Den Beste knowingly embezzled money from his law firm and then attempted to conceal what he had done. He had no colorable claim to nor was there any fee dispute regarding that money. “[I]t is almost axiomatic that the licenses of lawyers who convert funds entrusted to them should be revoked.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Irwin, 679 N.W.2d 641, 644 (Iowa 2004). Accordingly, I would revoke Den Beste’s license to practice law.”

Bottom line:  The opinion discusses the differences between law firm theft and theft from the client and others.  The Iowa Supreme Court has provided notice to lawyers that future law firm theft will result in stiffer disciplinary sanctions than in the past.

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.

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Palm Harbor, Florida

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Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

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