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According to the opinion, the lawyer had posted multiple excerpts of unpublished and public judicial opinions related to fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination on his law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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Ticket Clinic law firm and individual defendants file Motion for Sanctions for frivolous lawsuit against TIKD in federal lawsuit

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent Rule 11 Motion For Sanctions for Filing Frivolous Lawsuit filed by the Ticket Clinic Law Firm (Gold and Associates) and the individual defendants.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court, Southern District of Florida-Miami Division).  The Motion for Sanctions is available on the PACER federal document system here:  https://www.pacer.gov/login.html (subscription required).

As I previously blogged, TIKD Services, LLC filed the federal lawsuit against The Florida Bar, the Ticket Clinic law firm, and other individuals in the U.S. District Court, Southern District of Florida on November 8, 2017.  The TIKD app is set up to allow an individual who has received a traffic citation to upload a photo of the citation and pay a fixed fee.  TIKD then retains an attorney to represent that individual and, if that individual receives points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.  The TIKD business model is apparently based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by the individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment; however, TIKD states that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”  A complaint was filed by members of the law firm with The Florida Bar alleging that TIKD was engaging in the unauthorized practice of law (UPL).  That complaint is currently pending and the Bar has recommended further proceedings.

TIKD then filed a lawsuit in federal court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The defendants include The Florida Bar, attorney Mark S. Good, who founded The Ticket Clinic law firm, and other individuals.  According to the Complaint, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story.  A few months later, attorneys with The Ticket Clinic, a Miami law firm that handles traffic tickets, threatened to report two of TIKD’s lawyers to The Florida Bar if they continued to work with TIKD.

A state lawsuit was later filed and the parties reached a settlement in that matter; however, TIKD alleges in the Complaint that The Florida Bar and the Ticket Clinic law firm continued to make a “concerted effort” to put it out of business, and that the firm’s lawyers continued filing “baseless ethics complaints” against attorneys who represent TIKD customers.

The recent Motion for Sanctions alleges that the claims against the law firm and the individual defendants are baseless and fail to state a cause of action, that there is no subject matter jurisdiction, that The Florida Bar has immunity, which immunizes the individual defendants, that the individuals have immunity on other grounds, that the lawsuit is frivolous on other grounds, and that the lawsuit should be dismissed and the Plaintiffs should be sanctioned.

Bottom line:  As I have previously stated, this is one of the first cases filed in Florida (and possible in any jurisdiction) which directly alleges that a State Bar’s procedures violate the Sherman Antitrust Act in reliance upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  A Motion for Sanctions under Federal Rules of Procedure 11 has now been filed seeking sanctions against TIKD and the dismissal of the Complaint against the law firm and individual defendants.

Stay tuned…

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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

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 Florida Bar, Florida Bar TIKD antitrust lawsuit, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, North Carolina Dental Board, North Carolina dental whitening case and UPL, TIKD UPL Bar request for Florida Supreme Court injunction, TIKD v Florida Bar Motion for Sanctions, TIKD v. Florida Bar antitrust federal lawsuit, TIKD v. Florida Bar motion to disqualify ex-president, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit, UPL North Carolina federal judge opinion on regulation of UPL

Amended Comment to Florida Bar Rule 4-5.8, effective 2/1/18, clarifies client notice procedures when lawyers leave law firms

Hello and welcome to this Ethics Alert which will discuss the amended Comment to Florida Bar Rule 4-5.8, clarifying procedures when lawyers leave law firms, which became effective 2/1/18.  The Florida Bar filed a Petition with, inter alia, the proposed rule amendment with the Florida Supreme Court on October 15, 2016.  The Court approved the amended Comment in an opinion dated 11/9/17, and the revision became effective on February 1, 2018.  The SC case is: In re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), 229 So.3d 1154 (Fla. 2017) and the opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf

Florida Bar Rule 4-5.8 sets forth the required procedures when a lawyer leaves a law firm or when a law firm dissolves. The text of the rule was not changed substantively; however, the Comment was been revised to clarify the procedures and address issues which frequently arise in these circumstances.  The revisions include the following:

  1. when a lawyer leaves a firm or the firm dissolves or changes its members, the departing lawyer and the firm “should engage in bona fide, good faith negotiations within a reasonable period of time” after the change is known, and notice to clients must be given “within a reasonable period of time.”  This revision clarifies the time frame for negotiations to be “within a reasonable time.”
  1. the required notice to clients may be made by telephone; however, proof of compliance ”may be difficult unless the notification is in writing.”  This clarifies that the notice to clients may be by telephone; however, proving compliance with the rule when notice is made this way “may be difficult.”
  1. client notice should be given to “current clients for whom the departing lawyer has provided significant legal services with direct client contact”; however, notice to clients with whom the departing lawyer had no direct contact is not required.  This revision clarifies to which clients the client notice must be sent.
  1. to comply with the rule, “both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact.”
  1. when neither the departing lawyer nor the firm intend to continue representing a client, the client may be notified with a joint notice (or separately if the parties are unable agree on a joint notice); however, any obligations to give notice, protect the client’s interests on withdrawal, and obtain required court permission “may apply to both the departing lawyer and lawyers remaining in the firm.”  This clarifies that the client notice obligation may apply to the firm and the lawyer leaving the firm.

Bottom line:  This Bar Rule amendment clarifies some of the issues which come up frequently regarding notice to clients when lawyers leave law firms or the law firm breaks up or changes members.

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.

29605 U.S. Highway 19 N., Suite 150,

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Florida Bar, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers leaving law firms, Lawyers leaving law firms Bar Rule 4-5.8, Rule 4-5.8 amendment to comment 2018

Amended Florida Bar Rule 4-1.8(c) prohibiting soliciting any gift from a client or preparing instrument with any gift became effective 2/1/18

Hello and welcome to this Ethics Alert which will discuss amended Florida Bar Rule 4-1.8(c), which prohibits a lawyer from soliciting any gift from a client or preparing an instrument with any gift for the client.  The Florida Bar filed a Petition that included the proposed rule amendment with the Florida Supreme Court on October 15, 2016.  In an opinion dated November 9, 2017, the Court approved amended Rule 4-1.8(c),, which became effective February 1, 2018.  The case cite is: In re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), 229 So.3d 1154 (Fla. 2017) and the opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf

Previous Florida Bar Rule 4-1.8(c) prohibited lawyers from soliciting or accepting a “substantial” gift from a client or preparing a testamentary instrument giving the lawyer or a person related to the lawyer a “substantial” gift; however, the rule did not define “substantial” and a potential rule violation was potentially subject to the Bar’s subjective interpretation of that word.

Amended Bar Rule 4-1.8(c) now prohibits lawyers from soliciting any gifts from clients or preparing an instrument for a client with a gift, regardless of the size of the gift.  Florida Bar Rule 4-1.8(c) as amended, is below:

RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS

(c)  Gifts to Lawyer or Lawyer’s Family. A lawyer is prohibited from soliciting any gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

The Comment to Rule 4-1.8 was also amended to state that a lawyer may prepare a document that appoints the lawyer, the lawyer’s firm, or a relative of the lawyer to a “fiduciary office” (such as a personal representative or trustee) only if “the client is properly informed, the appointment does not violate rule 4-1.7, the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing.”

The Comment further states that the lawyer should advise the client in writing that “a person who serves as a fiduciary is entitled to compensation, and that the lawyer may be eligible to receive compensation for serving as a fiduciary in addition to any attorneys’ fees that the lawyer or the lawyer’s firm may earn for serving as a lawyer for the fiduciary.” (emphasis supplied)

Bottom line:  This Bar Rule amendment clarifies the rule and a lawyer will now violate this rule if he or she solicits any gift from a client or prepares and instrument with a gift, regardless of the size of the gift.

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.

29605 U.S. Highway 19 N., Suite 150,

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under 4-1.8(c) gifts from clients, Amended Florida Bar 4-1.8(a) gifts from clients, Attorney Ethics, Florida Bar, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, lawyer accepting or soliciting gifts from clients, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer gifts from clients

The Florida Bar’s Board of Governors votes to approve charge of “litigation cost protection insurance” premium to clients

Hello everyone and welcome to this Ethics Alert will discuss the recent decision of the Florida Bar’s Board of Governors to allow lawyers to pass-through the costs of “litigation cost protection” insurance to the client.

According to a recent article in the February 15, 2018 Florida Bar News, the Board of Governors (BOG) voted at its meeting on January 26, 2018 in Tallahassee to permit lawyers to charge the client with the cost of the “litigation cost protection” premium; however, the lawyer must obtain informed consent and make extensive disclosures.  The Bar News article is here:  https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2Fba78355e43f4e50085258228004a94da

The insurance product, called “litigation cost protection” insurance, reimburses up to the insured amount of costs advanced by the lawyer to the client only if the case goes to trial and there is no recovery.  Supporters of the insurance state that it provides sole practitioners and smaller firms with the ability to go after deep pocket defendants.  Under the terms of the insurance policy that was considered by the BOG, the premiums would be 7 percent of the dollar amount of coverage, or $17,500.00 if the lawyer obtains the maximum coverage of $250,000.

After an intense debate, the BOG voted 23-17 to permit the lawyer to require the client to reimburse the cost of the insurance premium.  The BOG’s decision reversed a Florida Bar Professional Ethics Committee (PEC) decision in 2017 which opined that a lawyer would be prohibited from charging the client for the cost of the policy.  The BOG directed Bar staff to issue an advisory opinion and the final proposed opinion states that the insurance premium pass through to the client is “a close question because the circumstances described create potential conflicts of interest between the lawyer and client throughout litigation.

The final BOG opinion listed eight conditions, including that the lawyer must: make “an objectively reasonable determination that the litigation cost protection insurance serves the client’s best interest”; inform the client that other attorneys may offer contingency fee arrangements without passing along the expense of the litigation cost insurance; fully explain the insurance and why it is in the client’s best interest; give the client a copy of the policy and advise him or her to have another lawyer to review it; and not allow the terms or availability of coverage to “adversely affect (the lawyer’s) independent, professional judgment, the client-lawyer relationship, or the client’s best interest.”

Bottom line:  Notwithstanding the BOG’s close vote, this decision will now permit lawyers to pass through the cost of the premium for litigation cost protection insurance to their clients without violating the Florida Bar Rules related to litigation expenses.

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.

29605 U.S. Highway 19 N., Suite 150,

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney Ethics, Florida Bar, Florida Bar Board of Governors opinion approving pass through of litigation cost protection insurance premium, joe corsmeier, Joseph Corsmeier, Lawyer costs charging client for litigation cost protection insurance

Florida Supreme Court specifically incorporates lawyer-fiduciary privilege into the Florida Evidence Code, F.S. §90.5021

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion adopting and incorporating lawyer/fiduciary privilege into Florida Evidence Code, F.S. §90.5021.  The Supreme Court opinion adopting the revisions is In Re: Amendments to the Florida Evidence Code – 2017 Out of Cycle Report, Case No. SC17-1005 (January 25, 2018) and the court’s opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc17-1005.pdf

As background, in 2011, the Florida Legislature enacted F.S. §90.5021, which applies the privilege to attorney communications with a client who is a trustee, personal representative, or guardian to the same extent as if the client were not acting as a fiduciary.  The statute was intended to end the issue of whether beneficiaries should be given access to information and advice given to fiduciaries by their lawyers and the statute appeared to confirm that they should not be provided such information and advice.

Also in 2011, the Florida Bar’s Probate Rules Committee petitioned the Florida Supreme Court to adopt an amendment to Florida Probate Rule 5.240(b)(2), which provides the requirements for notices of estate administration.  The amendment required the notice to include a statement that “the fiduciary lawyer-client privilege in section 90.5021, Florida Statutes, applies with respect to the personal representative and any attorney employed by the personal representative.”   This probate rule was approved by the Florida Supreme Court, effective September 28, 2011.

The Florida Evidence Code provisions which contain substantive law are reviewed and implemented by the Florida legislature and the procedural provisions are reviewed and implemented by the Florida Supreme Court; therefore, the court does not review and implement substantive law provisions.

In 2014, the Florida Supreme Court declined to adopt proposed F.S. §90.5021, which would have protected attorney/fiduciary privilege in the Florida Statutes.  This created a conflict with the previously approved Florida Probate Rule, which applied the privilege created by the 2011 F.S. §90.5021 to fiduciaries, which caused uncertainty.

To attempt to resolve this uncertainty, The Florida Bar’s Probate Rules Committee and the Code and Rules of Evidence Committee filed an out of cycle report and petition requesting the Court to resolve the conflict and implement the statutory provision to the extent that it is procedural.  In response to that petition, the Florida Supreme Court issued its opinion adopting §90.5021, Fla. Stat., which provides that the attorney-client privilege applies even when the client is a fiduciary to the extent that it is procedural.  The opinion stated that the provision “is effective retroactively to June 21, 2011, the date it became law.”

Bottom line:  I have discussed this issue and the uncertainty with lawyers and in seminars since the issue arose in 2014.  This opinion resolves the uncertainty and protects the lawyer/fiduciary privilege along with Florida Probate Rule 5.240(b)(2) and it is unlikely that the legislature will challenge the statutory provision as substantive.

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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

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 .S. Supreme Court, Attorney fiduciary privilege, attorney-client privilege, attorney/client privilege, Attorney/client privilege and confidentiality, Confidentiality and privilege, Florida Bar, Florida Statutes lawyer fiduciary privilege, Florida Supreme Court, joe corsmeier, Joseph Corsmeier

Pennsylvania Supreme Court disbars ex-judge who pled guilty to stealing cocaine held in court cases

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Pennsylvania Supreme Court opinion disbarring a former judge who pled guilty to stealing cocaine, from an evidence locker in his courtroom for his own personal use for more than a year.  The case is Office of Disciplinary Counsel v. Paul Michael Pozonsky (Case No. 123 DB 2015) (opinion issued January 18, 2018).  The opinion is here: http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/123db2015-pozonsky.pdf#search=%22Paul Pozonsky%22.

According to the disciplinary opinion, “the judge . . . presided over criminal trials, juvenile delinquency hearings, and also directed the rehabilitative disposition of drug offenders in that county’s Drug Court, which he founded. Using his position as a jurist, he directed police officers and court personnel to bring cocaine, which was evidence in the cases over which he was presiding, to an evidence locker in his courtroom; whereupon, for over a year, he stole quantities of this illegal drug from that locker and used it for his own recreational purposes, all while continuing to preside over criminal prosecutions and imposing sentences on defendants for committing crimes which he himself was contemporaneously engaging in.”

“After Pozonsky’s illicit activities were discovered, he resigned his judicial commission and was convicted for his crimes. After considering all the relevant facts and circumstances surrounding Pozonsky’s egregious misconduct while a commissioned judge, and taking into account the mitigating evidence he offered, the Disciplinary Board of the Supreme Court of Pennsylvania (“Disciplinary Board” or “Board”) issued a unanimous report detailing its factual findings and its recommendation that he be disbarred.”

The opinion further stated that “(t)here are few transgressions which more seriously undermine the public’s confidence and trust in the integrity of their judicial system, and which are as offensive to the high standards and principles which other members of the bench and bar strive so faithfully to uphold in the performance of their duties, than those committed by Pozonsky.”

The ex-judge pled guilty in 2015 to charges related to the theft of the cocaine, including misdemeanor theft, obstruction of justice, and misapplication of entrusted property and served one month in jail.

Oral arguments were held in April 2017 and the ex-judge stated in mitigation that he had accepted full responsibility for his conduct and engaged in community service, including working at a homeless mission and counseling others with addiction as mitigating factors in an effort to reduce the disciplinary sanction.  The court rejected the ex-judge’s argument that his addiction should be considered as a mitigating factor.

The disciplinary opinion concluded: “Because the evidence of record amply supports the Board’s findings and corresponding recommendation of disbarment, we order Pozonsky’s disbarment to both protect the public and to preserve the integrity of the legal profession.”

Bottom line:  This is an extremely egregious case of an apparently addicted judge who asked law enforcement to bring cocaine to his courtroom to “hold” in criminal cases (not sure how that would happen) and then stole the cocaine from the locker and used it for “his own recreational; purposes.”  A concurring opinion stated that disbarment was not automatic and mused that it was ironic that the ex-judge was not able to mitigate the disbarment by showing that he was addicted but agreed that disbarment was appropriate.

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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

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 discipline, Attorney Ethics, dishonesty, joe corsmeier, Joseph Corsmeier, Judicial ethics, Lawyer criminal conduct, Lawyer disbarment, Lawyer disbarred stealing and using cocaine as judge, Lawyer discipline, Lawyer discipline for criminalconviction, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misconduct stealing and suing drugs while judge