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According to the opinion, the lawyer had posted multiple excerpts of unpublished and public judicial opinions related to fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination on his law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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Pennsylvania Supreme Court suspends lawyer for 2 years for assisting UPL, improperly accessing CM/ECF, and making false statements

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

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

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

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

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

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Texas judge admonished for commenting on pending criminal case on her Facebook page and violating her own order

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

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

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

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

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

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

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

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

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

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

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

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

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

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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U.S. Supreme Court upholds Florida’s judicial rule prohibiting direct campaign contribution solicitations by judges and judicial candidates

Hello everyone and welcome to this Ethics Alert which will discuss the very recent United States Supreme Court opinion upholding Florida’s judicial rule prohibiting judges and judicial candidates from directly soliciting campaign contributions.  The case is Williams-Yulee v. Florida Bar, No. 13-1499.  (April 29, 2015).  The link to the opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-1499_d18e.pdf

A Florida lawyer named Lanell Williams-Yulee was a 2009 candidate for a county court judgeship.  She signed a letter asking potential voters to donate to her campaign.  She lost the election and was subsequently prosecuted by The Florida Bar as a lawyer for an alleged violation of 7C(1) the Florida Code of Judicial Conduct.  After the lawyer was found guilty, The Florida Supreme Court reviewed the matter and upheld the guilty finding.  The lawyer then filed for a Writ of Certiorari with the U.S. Supreme Court challenging the constitutionality of the Canon, arguing that it violated the First Amendment by restricting her speech.

As background, the Florida Supreme Court implemented the prohibition of direct solicitation for judges and judicial candidates in the 1970s after three of that Court’s justices resigned as a result corruption scandals. The opinion states that, “(a)ccording to the American Bar Association, 30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to Canon 7C(1).”

Chief Justice John Roberts wrote the 5-4 opinion which upheld the prohibition of direct solicitation.  Interestingly, he was on the same side as the four liberal justices.   The opinion states:

“Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions.”

 

“A State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections, because a judge’s role differs from that of a politician. Republican Party of Minn. v. White, 536 U. S. 765, 783. Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors. As in White, therefore, precedents applying the First Amendment to political elections have little bearing on the issues here.”

“Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. When the judicial candidate himself asks for money, the stakes are higher for all involved. A judicial candidate asking for money places his name and reputation behind the request, and the solicited individual knows that the same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public.”

 

“The desirability of judicial elections is a question that has sparked disagreement for more than 200 years, but it is not the Court’s place to resolve that enduring debate. The Court’s limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.”

“(W)e hold today what we assumed in White:  A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.”  “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.”

Justice Anthony Kennedy, in his dissent, states that “(b)y cutting off one candidate’s personal freedom to speak, the broader campaign debate that might have followed—a debate that might have been informed by new ideas and insights from both candidates—now is silenced” along with the “educational process that free speech in elections should facilitate.”

 

Bottom line:  This is an important U.S. Supreme Court decision upholding a Florida prohibition of solicitation by a judge or judicial candidate in the ongoing (and long running) debate regarding the balancing of First Amendment/free speech with the regulation of judicial elections.  The decision is surprising since the Supreme Court’s current conservative majority has stricken down virtually every campaign-finance limitation in the past decade, stating that political contributions spending are the equivalent of free speech, which generally cannot be limited.  In addition, Chief Justice Roberts joined the four liberal justices in the decision.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

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Indiana lawyer disbarred for, inter alia, “profoundly disturbing” harassment, “repugnant pattern of behavior and utter lack of remorse”

Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion which disbarred a lawyer for a “repugnant pattern of behavior and utter lack of remorse”, deceitful responses and lack of candor, neglect involving an appeal, unwillingness to appreciate the wrongfulness of his misconduct, and propensity to shift blame to others and see himself as the victim.  The case is In the Matter of R. Mark Keaton, No. 02S00-1302-DI-95 (April 21, 2015).  The link to the opinion is here: http://www.in.gov/judiciary/opinions/pdf/04211501per.pdf

According to the opinion, the lawyer, who was married at the time, began a romantic relationship with his daughter’s roommate.  The roommate ended the “tempestuous long-distance relationship” in March 2008 and “from March 2008 through April 2010, at least 7,199 emails were exchanged between The lawyer and the roommate), the vast majority sent by (the lawyer). Both (the lawyer’s) oral and written communications to (the roommate) were threatening, abusive, and highly manipulative in nature.”

The lawyer also left “profoundly disturbing” voice mails on the roommate’s telephone and the opinion gave an example of one of the them: “(Shouting) Call me the f— back! I don’t know who the f— you think you are.  But I’ll tell you what, you better f—ing call me f—ing back now!  You f— with me one more time and this time you’ll really f—ing pay for it!  And you need to think about it! Now you f—ing quit f—ing with me!”

The lawyer also threatened suicide and carried through on his threat to post nude photos of the roommate, by sending them to others in e-mails, posting them on adult websites, and posting them on his own blog, along with “disparaging diatribes” about her.  According to the opinion, the lawyer still refuses to take down his blog.  The lawyer also filed three lawsuits against the roommate and others and “made duplicitous statements to the (disciplinary commission) in reference to those related proceedings.”

The lawyer argued that his contact with the roommate was mutual and consensual.  He further argued that she had a form of mental illness and her requests for him to stop contacting her actually indicated her desire to submit to him.  He also argued that his actions did not constitute stalking or harassment.

The opinion states that this “outrageous behavior falls woefully short” of the ethics requirements that lawyers be of good moral character and fitness. “Put simply, (the lawyer) engaged in-and continues to engage in-a scorched earth campaign of revenge in the wake of being dumped by (the roommate) seven years ago”. “Most disturbingly, despite the entreaties of (the roommate) and several others, (the lawyer) simply has refused to take ‘no’ for an answer.”  The Court disbarred the lawyer effective immediately since the lawyer was already suspended and imposed costs.

Bottom line:  This case involves some very disturbing conduct by a lawyer who apparently went off the deep end and engaged in outrageous conduct when an individual with whom he was having a relationship (his daughter’s former roommate no less) broke it off.  This case is disturbing on multiple levels, including the apparent complete lack of recognition by the lawyer that his conduct was outrageous and unethical and arguing that it was not stalking or harassment.

Be careful out there (and of course don’t do this).

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Illinois Disciplinary Board upholds lawyer’s 6 month suspension for, inter alia, keeping fees and “indefensibly outrageous” statements

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Disciplinary Review Board report which recommended a 6 month suspension (with no automatic reinstatement) of a lawyer who failed to perform legal services for which he was retained, failed to return unearned fees, failed to communicate with clients and failed to reduce fee agreements to writing, and making “indefensibly outrageous” statements about lawyers and a court deputy in litigation cases.  The case is In the Matter of: David Alan Novoselsky, Commission No. 2011PR00043, SC No. 2069881 (April 10, 2015).  The link to the Board recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11701

The Review Board of the Illinois Attorney Registration and Disciplinary Commission upheld a Hearing Board’s findings that the lawyer failed to perform legal services for which he was retained, failed to return unearned fees, failed to communicate with clients, and failed to reduce fee agreements to writing.  According to the Board’s report, the lawyer also called a female lawyer derogatory names, including “b—-,’ ‘‘asshole,” “slut,” “c—,” “pervert,” “whore” and “child molester”.  He called another lawyer an “idiot” and a “cokehead,” and he also called a deputy a “dumbbell” after she asked him to lower his voice.

“(The lawyer) denied making some of the statements and could not remember if he had made other statements. However, he admitted making several of the statements.  He often claimed he was provoked by undocumented personal attacks against him or claimed that the parties were “ribbing” each other, although witnesses confirmed (a witness’s) testimony that she did not provoke, react, or respond to these statements.”  “His attacks on opposing counsel and a court deputy displayed an utter disregard for the integrity of the courts…(w)hile he may still believe that he was provoked, the record indicates otherwise.  We find his conduct to be indefensibly outrageous.”

“Because we find (the lawyer’s) actions to be egregious and because respondent lacks any remorse or understanding of his misconduct, we recommend to the court that he be suspended for six months and until further order of the court.”  The hearing board had recommended a six-month suspension with automatic reinstatement.  The review board also recommended that the lawyer be ordered to return $30,000 in restitution of unearned fees.

The Board noted in mitigation that the lawyer had practiced law for 40 years without being disciplined, he had performed pro bono work, and had been active in bar associations.  There was no mention of any other mitigation, such as substance abuse or other personal issues.

Bottom line:  This case involved an Illinois lawyer who apparently went off the deep end and made outrageous derogatory statements in highly contested litigation cases.  He also apparently kept unearned fees, failed to perform legal services, failed to obtain written fee agreements, and failed to communicate with clients.  The Illinois Supreme Court will review the recommendation and it will be interesting to see if the Court agrees or increases the recommended sanction.  Stay tuned…

Be careful out there (and of course don’t do this).

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Indiana assistant public defender suspended for one year for texting prostitute to a cell telephone in police custody and soliciting prostitution

Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion suspending an assistant public defender for one year for, inter alia, sending a text to a person who he believed was a prostitute to a cell telephone in police cust

ody and soliciting that person for prostitution, and then meeting an undercover police officer at a hotel to solicit sex from her.  The opinion is In the Matter of: Christopher A. Hollander, No. 49S00-1402-DI-118 (Ind. SC March 24, 2015) and the link to the disciplinary opinion is here: http://www.in.gov/judiciary/opinions/pdf/03241501per.pdf

According to the opinion, “H.S., using a fictitious name, had placed an online classified advertisement for escort services that listed her cell phone number.  At some point, H.S. was arrested by the Indianapolis Metropolitan Police Department (“IMPD”) for engaging in prostitution.  Respondent had seen and remembered H.S.’s classified advertisement, and when Respondent came across a police report containing the same phone number, he was able to determine specific arrest information regarding H.S. and thereafter identify her.”

The lawyer, who was an assistant public defender, texted that telephone number in November 2012 believing that the text was going to H.S.; however, the telephone was actually in the possession of the Indianapolis police and an officer impersonating the woman responded to the text.  The lawyer told the officer impersonating H.S. that he could help her with her situation and that he would “work with her” with regard to the attorney fees.  The lawyer set up a time to meet the undercover office who he believed to be H.S. and went to a hotel to meet her in December 2012. When the lawyer arrived at the hotel, he tried to hug and kiss the officer impersonating H.S. and made statements indicating that he wanted sex with her in exchange for legal services.

The lawyer and the Indiana Bar stipulated to the facts and to a one year suspension.  In mitigation, “(1) Respondent has no prior discipline; (2) following his arrest, Respondent sought help from the Indiana Judges and Lawyers Assistance Program (“JLAP”), he has been under a JLAP monitoring agreement, and he has been receiving psychological therapy and treatment; (3) Respondent was candid with police immediately following his arrest; and (4) Respondent has expressed remorse for his behavior.

The Indiana Supreme Court accepted the stipulation and suspended the lawyer for a minimum of one year with the requirement that he petition for reinstatement at the end of the suspension period and meet the requirements for reinstatement, which include satisfying “the burden of demonstrating by clear and convincing evidence remorse for his misconduct, a proper understanding of the standards imposed upon members of the bar.”

Bottom line:  This case involves lawyer who apparently abused his position as an assistant public defender to obtain information on an alleged prostitute for purposes of solicitation and then actually solicited an undercover police officer for prostitution at a hotel.   The lawyer had no previous discipline, was fully cooperative, and is receiving psychological therapy and treatment; however, he received a one year rehabilitative suspension for the misconduct.  I am not sure what might be more embarrassing for a lawyer than this type of misconduct and discipline.

Be careful out there (and please don’t do this).

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

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New York ethics opinion provides guidance for lawyers regarding the ethical implications of attorney profiles and content on LinkedIn

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York ethics opinion which provides guidance to lawyers who use LinkedIn.com for professional enhancement as well as the ethical implications of attorney profiles.  The opinion is New York County Lawyers Association Professional Ethics Committee Formal Opinion 748 (March 10, 2015) and the link to the formal opinion is here: https://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf

As the opinion notes, LinkedIn is a business-oriented social networking website which has become popular and is now commonly used by lawyers.  LinkedIn allows a lawyer to create a profile with background information, including work history and education, and links to other users based on their experience or connections.  Lawyers can also use the site to communicate with acquaintances, locate someone with a particular skill or background or to keep up with other lawyers’ professional activities and job changes.  The lawyer can also publish educational information on the site’s home page or create separate LinkedIn page.  I have a LinkedIn blog page which is here: https://www.linkedin.com/groups?home=&gid=4043538&trk=groups_most_recent-h-logo

The opinion cautions that a lawyer’s content may be an advertisement and that New York Rule of Professional Conduct 7.1 prohibits attorneys and law firms from disseminating an advertisement that contains false or misleading statements and/or claims.  The term “advertisement” includes “communications made in any form about the lawyer’s services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication.”

The New York rule permits attorneys to include educational experience, but prohibits undisclosed paid endorsements and fictitious portrayals or references to lawyers not associated with the firm.  The New York rule also requires online content which is an advertisement to be labeled as “Attorney Advertising” and advertisements must also include a disclaimer that results are not guaranteed.

The opinion concludes that “(a)ttorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising. If an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills or endorsements, the profile may be considered Attorney Advertising, and should contain the disclaimers set forth in Rule 7.1. Categorizing certain information under the heading ‘Skills’ or ’Endorsements’ does not, however, constitute a claim to be a ‘Specialist’ under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.”

“Attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations written by other LinkedIn users. If an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.”

Bottom line:  As the opinion states, lawyers should carefully monitor their social media content to insure that it complies with the ethics rules in the lawyer’s jurisdiction(s).  If a communication is primarily intended to obtain clients and for pecuniary gain (and contains information that goes beyond the “tombstone language” permitted in that jurisdiction), the communication will most likely be considered to be an advertisement and all relevant rules of advertising must be followed.  This would efforts to insure that all information is accurate, that the content is not misleading, and the inclusion of any relevant disclaimers.  The Florida Bar’s advertising rules are similar to New York’s; however, lawyers in jurisdictions other than New York should not rely on this opinion and must review and comply with the relevant 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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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