Monthly Archives: November 2011

Virginia Bar Panel Admonishes Lawyer for Naming Clients in Blog and Failing to Include Advertising Disclaimer

Hello everyone and welcome to this JACPA Ethics Alert and blog which is an update of my October 20, 2011 Ethics Alert and discusses the recent admonishment of a Virginia lawyer for discussing criminal proceedings and including client names in his blog and failing to include an advertising disclaimer.  The lawyer’s practice includes criminal defense and he discussed criminal proceedings, including his clients’ cases, in his blog.  The blog was hosted on his law firm’s website and did not include a disclaimer that is required by the Virginia lawyer advertising rules.  The website also listed case results.

The matter was considered by a Virginia Bar disciplinary committee which found that the lawyer violated Virginia Bar rules by including clients’ names in blog posts without their consent and failing to include the advertising disclaimer.  The case is In re Hunter, Virginia State Bar, 3d Dist. Comm., VSB No. 11-032-084907 (11/8/11).  The report admonished the lawyer and warned that further rule violations would result in more serious sanctions.

According to the report, the lawyer’s website discussed information regarding his clients’ cases, “the disclosure of which would be embarrassing or be likely to be detrimental to the client”.  In addition, the lawyer “did not receive consent from any of the clients listed in the postings on the respondent’s web page prior to disseminating such case information.”  A former client testified that he was disturbed by the lawyer’s disclosure of a positive cocaine test in a blog post questioning the reliability of that test.

The lawyer argued that the names of his clients are not “confidential information” that he is required to protect under Virginia Rule of Professional Conduct 1.6 (substantially similar to Rule 4-1.6, Rules Regulating The Florida Bar) since the blog posts with clients’ names are based entirely on open court proceedings and other matters of public record, which include clients’ names.  He further argued that he never disclosed any information from his confidential attorney-client discussions.  The lawyer also argued that requiring his blog posts to have the required advertising disclaimers would violate his right to free speech and were not advertising.

According to media reports, Virginia Bar counsel took the position that the criminal trial court proceedings are not open trials, client names are necessarily revealed to the public in open court and in the court records, and Virginia’s general district courts are not courts of record.  Bar counsel also argued that even if trials in general district court produced public disclosures, Rule 1.6 prohibits attorneys from disclosing any significant case information without client consent, and the rules prohibit lawyers from publicly disclosing “information relating to the representation of a client,” which is much broader than the attorney-client privilege.  According to the Bar counsel, since the blog appears on the lawyer’s law firm website, it has a marketing/advertising effect, whether intended or not.

Bottom line:  Every lawyer who blogs should be fully aware of the various disciplinary rules which may apply to such communication, including the requirement that the lawyer not disclose lawyer/client confidential information and advertising restrictions and requirements.  As I have said in previous Ethics Alerts and seminars, the requirement that a lawyer maintain client confidentiality is much broader than the attorney/client privilege, which is governed by statute.  In addition, lawyer/client confidentiality continues even after the lawyer/client relationship has ended.

…be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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

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Florida Appeals Court finds that gift to lawyer which violates Bar Rule 4-1.8(c) is not per se void but is voidable with a presumption of undue influence

Hello everyone and welcome to this JACPA Ethics Alert which will discuss the recent 4th DCA Opinion which confirmed that substantial gifts to a lawyer in a testamentary instrument which violates Bar Rule 4-1.8(c) are not void per se; however, such gift create a rebuttable presumption of undue influence.  The case is Agee v. Brown, — So.3d —, 2011 WL 5554833 (Fla. 4th DCA, November 16, 2011).

As background, a Florida lawyer prepared a will, trust, and deed for a client (the decedent) which transferred the remainder interest in an enhanced life estate to the lawyer and his spouse.  A Bar complaint was filed against the lawyer.  The lawyer subsequently admitted that he violated Bar Rule 4-1.8(c) and agreed to a 90 day suspension to resolve the Bar discipline case.  That case is The Florida Bar v. Agee 59 So.3d 109 (Fla. 2011).

The lawyer and his spouse (who would also have received a substantial gift through the instruments) filed a petition with the probate court to revoke the most recent will of the decedent and enforce a prior will, which provided for the substantial gifts.  Mr. Brown, the personal representative, argued that the prior will was void as against public policy since the instruments providing the substantial gifts to the lawyer and his spouse violated Bar Rule 4-1.8(c).  The Bar Rule is below:

(c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial 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 substantial 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 trial court considered the arguments and issued an order dismissing the petition based on a lack of standing.  The court reasoned that the prior will was void as against public policy since the lawyer had violated Bar Rule 4-1.8(c) by drafting the instruments which left substantial gifts to him and his spouse.

The 4th DCA opinion held, inter alia, that the Florida Probate Code does not provide an automatic exclusion under these circumstances; therefore, the fact that the lawyer drafted the deed did not make the instruments per se void; however, the circumstances created a rebuttable presumption of undue influence.  The opinion concluded that the lawyer and his spouse had standing under the prior will to petition for the revocation of the decedent’s last will and reversed and remanded the case to the trial court for further proceedings.

Bottom line:  the Bar Rule prohibits lawyers from preparing instruments which provide that the lawyer will receive a substantial gift.  The question is whether the lawyer should then try to enforce the substantial gift provision in probate court after being found guilty of violating the Bar Rule.  Just asking…

…be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Louisiana Disciplinary Board Recommends Deferred 60 day Suspension for Lawyer who Failed to Supervise Lawyer and Office Staff

Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss the recent report of the Louisiana Disciplinary Board which recommended that a Louisiana lawyer who failed to properly supervise a lawyer in his office receive a deferred sixty (60) day suspension, attend Ethics School and/or CLE “geared toward solo practitioners, and pay investigative costs.

According to the Board’s report, the lawyer failed to supervise a lawyer that he employed in his high-volume real estate practice who engaged in a house-flipping scheme.  The scheme allegedly involved sellers who intended to sell their properties directly to the buyers; however, their homes were actually sold to a financial services company without their knowledge.  The financial services company in turn sold the properties to the buyers at an inflated price.

The report also found that the lawyer who allegedly perpetuated the scheme was apparently hired to help with the accused lawyer’s “exploding” real estate practice and he was essentially unsupervised.  The accused lawyer also failed to properly supervise his daughter, who acted as the office manager, and another employee who worked on real closings.  The lawyer who allegedly perpetuated the scheme blamed the document preparer and closing agent; however the report was skeptical of those explanations, to say the least. The report found that the lawyer who allegedly perpetuated the scheme “lacked credibility in all aspects of his testimony, except maybe when he stated his name,” the report said.

In addition, the report also found that the accused lawyer had an “extremely loose ship” and his non-lawyer daughter essentially ran his practice but he was a “sympathetic, but credible witness.”  Further, the lawyer “was a trusting man, to his detriment, and the detriment of the victim buyers”; however, he “could have and should have seen the problems…”

Bottom line:  We’ll see whether the Louisiana Supreme Court agrees with the Board’s recommendation of a deferred suspension; however, lawyers in all jurisdictions are responsible for properly supervising subordinate lawyers and non-lawyers and this appears to be an example of what could happen if the supervision is lax (or non-existent).  The Rules Regulating The Florida Bar set forth the specific requirements for supervising lawyers, specifically Rules 4-5.1 and 4-5.3.

…be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Rhode Island Lawyer required to perform pro bono services for blaming billing mistake on “staff error” even though he had no staff

Hello everyone and welcome to this JACPA Ethics Alert which will discuss the recent disciplinary Order/Opinion of the Rhode Island Supreme Court opinion requiring a Rhode Island lawyer to perform 20 hours of pro bono legal work in family court guardianship matters to resolve a disciplinary  case.  The case citation is: In the Matter of Milan Azar, Rhode Island Supreme Court Case No. 2011-359-M.P. (November 10, 2011).

According to the opinion, the case began with a billing dispute related to the lawyer’s representation in several family court guardianship cases for children in the same family.  After a disciplinary complaint was filed, the lawyer blamed the billing problems on “staff error”; however, further investigation by the disciplinary agency showed that he had no staff.

The opinion also states that the lawyer admitted that he made the false statements because he was embarrassed.  In mitigation, the opinion noted that “Respondent has no prior discipline, that he appears to be fully remorseful for his conduct, and that he has taken full responsibility for his conduct.  There are no aggravating factors present in this case.”  If the lawyer completes the 20 hours of pro bono services, the case will be dismissed without further order of the court.

Bottom line:  Lawyers should always tell the truth and shouldn’t blame mistakes on staff if there aren’t any (and don’t expect the result in this case if they do).  Perhaps we may have learned this in kindergarten?

…be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

istakes on staff if there aren’t any (and don’t expect the result in this case if they do).  Perhaps we may have learned this in kindergarten?

…be careful out there!

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Ban For-Profit Lawyer Referral Services Florida CFO Jeff Atwater tells Florida Bar

Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss the recent letter sent by Florida Chief Financial Officer (CFO) Jeff Atwater to current Florida Bar President Scott Hawkins in which he called for a complete ban on for-profit lawyer referral services (such as 1-800-ASK-GARY and 411-PAIN).  The Florida Bar has also appointed a committee to review lawyer referral services and make recommendations for any changes, which could include a potential prohibition of all for-profit lawyer referral services.

According to media reports, in his November 14, 2011 letter, CFO Atwater states that the Department of Financial Services has been investigating for-profit referral services for several years to determine whether close ties among those referral services, lawyers and pain clinics have led to fraudulent over treatment of accident victims that drives up the cost of auto insurance.  Atwater’s letter did not identify any lawyer referral services by name but stated that if the Bar does not prohibit lawyer referral services, the Florida Legislature should prohibit them by law.

According to Atwater, DFS “has received many confidential tips regarding the incestuous interactions between the participants in these referral services.”  He said that he is “appalled by the fact that these individuals, disguised as legitimate referral services, have been able to prey on society for so long.”  Atwater is also quoted in the St. Petersburg Times as stating that the for-profit referral service relationships set up a “quid pro quo environment” and  lawyers might send clients to clinics associated with the referral service instead of other unaffiliated clinics.

For those of you who are not familiar with the Florida Bar Rules related to for-profit lawyer referral services (which are distinct from non-profit lawyer referral services operated by The Florida Bar and many local Bar associations), under Bar Rule 4-1.10, lawyers who use for-profit lawyer referral services are prohibited from using such services unless the referral service complies with all of the requirements of the rule including, inter alia, that the service does not violate the Bar advertising and solicitation rules, share fees with the lawyer, has or requires each lawyer to have a liability policy of at least $100,000.00, furnishes the Bar with quarterly reports with names and Bar numbers of all lawyers participating and names of all persons authorized to act on behalf of the service, uses only its legal name in all public communications, and responds to any Bar inquiry in writing within 15 days.

Bottom line: For-profit lawyer referral services (and alleged accident fraud schemes) have generated large amounts of media, Florida Bar and government attention and investigation recently and it will be interesting to see how it all plays out.  Stay tuned…

…be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

 

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Divided Florida Supreme Court approves referee’s recommendation and reinstates lawyer who intentionally failed to file federal tax returns

Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss the recent Florida Supreme Court per curiam Order which, by a 4-3 vote, reinstated a lawyer to practice who apparently willfully failed to file income tax returns for the years 2007 and 2008 until early 2010 and failed to timely file the returns because knew that did not have the money.  Justice Canady wrote a strong dissent arguing that the lawyer failed to show his fitness to practice and rehabilitation by clear and convincing evidence.  The case is: The Florida Bar v. Hudson —So.3d—, 2011WL 4835808 (No. SC10-329 Fla. October 6, 2011).

Justice Canady’s dissent states that the lawyer was voluntarily placed on the Bar’s inactive list for incapacity unrelated to misconduct on August 16, 2005 and at that time; he was under a three-year term of probation for a prior disciplinary offense.  At the hearing before the referee, the lawyer admitted that he did not file income tax returns for the years 2007 and 2008 until early 2010 but that he filed the returns “in conjunction with the filing of [his] petition” for reinstatement.

The lawyer also admitted that he knew he had an obligation to file his tax returns each year and that he failed to timely file the returns because he “knew [he] did not have the money to pay” the taxes that he owed.  He offered no reason why he did failed to request an extension or a payment plan when the taxes were due or state that he was exempt from filing a tax return for those years.

The referee recommended that the lawyer be reinstated and The Florida Bar argued on review that the lawyer failed to prove his rehabilitation and fitness to practice by clear and convincing evidence and his conduct related to the failure to file the tax returns was disqualifying.

In his dissent, Justice Canady stated that the lawyer’s willful failure to file income tax returns for the years 2007 and 2008 was affirmative evidence of both unlawful conduct and financial irresponsibility.  He also pointed out that willful failure to file a tax return is a misdemeanor offense and the comment to  Bar Rule 4-8.4 expressly notes that the “willful failure to file an income tax return” is “illegal conduct [that] reflect[s] adversely on fitness to practice law.”

According to Justice Canady, “(c)ontrary to the referee’s determination, (the lawyer’s) willful disregard of his obligation to file income tax returns is disqualifying conduct. This flouting of the federal income tax law is serious misconduct which should preclude “(the lawyer’s) reinstatement until he has demonstrated rehabilitation.”  Further, “(the lawyer’s) disregard of his obligation to file his tax returns was part of a pattern of misconduct” and the lawyer received a three-year period of probation for misconduct in 2005 and received a minor misconduct and served jail time for an incident of “road rage” that occurred in April 2006.

Bottom line:  This is an interesting recent lawyer discipline Order of the Supreme Court of Florida on multiple levels.  First, the Court approved the referee’s recommendation to reinstate the lawyer on a narrow 4-3 vote with Justices Pariente, Quince, LaBarga, and Perry voting to reinstate and Justices Lewis and Polston joining Justice Canady’s dissent.  Second, since there is no majority opinion, the underlying rationale of the majority is unknown and the vote to reinstate could either be because the majority did not find the conduct to be disqualifying or that the other mitigation and rehabilitation evidence was sufficient to overcome the prior conduct (or some other reason or reasons).  Finally, Justice Canady’s dissent is very strongly worded and there is no majority opinion to counter his arguments and observations, which will not be precedential.

…be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Nevada Supreme Court says lawyer should not be disqualified for using confidential information from anonymous source

Hello everyone and welcome to this JACPA Ethics Alert.  This Ethics Alert will discuss the recent Nevada Supreme Court case which held that a lawyer who received and used confidential/privileged information from an anonymous source in litigation should not be disqualified because he promptly notified opposing counsel of the anonymous disclosure and did not review any privileged information contained in it. The case is: Merits Incentives, LLC v. The Eight Judicial District Court of the State of Nevada, ___ P.3d___, 2011 WL 4634159 (October 6, 2011)

In a lawsuit between a manufacturer and a distributor, the manufacturer’s lawyer received (from an anonymous mailer who turned out to be the distributor’s former employee), confidential/privileged information regarding the distributor.  The lawyer notified the distributor that he had received the information and the distributor did not immediately object, but later filed a motion to disqualify the lawyer based on the lawyer’s use of the information.  The trial court denied the motion, but did exclude the lawyer from using one document which appeared to contain privileged/confidential information.  The distributor then sought a writ of mandamus to compel the judge to disqualify the lawyer.

The Nevada Supreme Court denied the writ and clarified the proper analysis for disqualification. The opinion first noted that the lawyer did not violate any ethical rules and Nevada Bar Rule 4.4(b), which governs inadvertent disclosures in Nevada (and is similar to Florida Bar Rule 4-4.4(b)), did not apply because the disclosure was from an anonymous third party, not the opposing party/counsel, and was intentional rather than inadvertent.  Also, Nevada Bar Rule 4.4(a) (prohibiting methods of obtaining evidence that violate the rights of a third person), and Nevada Bar Rule 8.4(d) (prohibiting conduct prejudicial to the administration of justice), did not apply because those rules require some affirmative action by the lawyer but this lawyer had passively received the information.

Absent any controlling authority, the opinion analogized to Nevada Bar Rule 4.4(b) and imposed a requirement that lawyers who receive anonymous information regarding a case must promptly notify opposing counsel and the failure to do so could result in an ethical violation and/or disqualification of the lawyer.  The opinion also found that the trial court did not abuse its discretion by refusing to disqualify the lawyer because the lawyer had promptly notified opposing counsel of the anonymous disclosure and had declined to review the privileged document.

The opinion adopted the multiple factor analysis used by the Texas Supreme Court for the trial court’s determination of the disqualification question. The list of factors includes, but is not limited to:  1) whether the lawyer knew or should have known that the material was privileged; 2) the promptness with which the lawyer notified the opposing side of the receipt of the privileged information; 3) the extent to which the lawyer reviewed and digested the privileged information; 4) the significance of the privileged information; i.e., the extent to which the disclosure may prejudice the moving party’s claim or defense, and the extent to which the return of the documents will mitigate any prejudice; 5) the extent to which moving party may be at fault for the unauthorized disclosure; and 6) if and to what extent the non-moving party will suffer prejudice from the disqualification.

Bottom line:  As I have discussed in Ethics Alerts and at seminars in the past, the Rule 4-4.4(b), Rules Regulating The Florida Bar requires only that the lawyer notify opposing counsel (opposing party) of the receipt of inadvertently disclosed privileged and/or confidential information.  The approach taken by the Nevada (and Texas) Supreme Courts regarding anonymous information seems to be a reasonable approach to the anonymous disclosure this issue.  With regard to potential disqualification, if the lawyer immediately notifies the opposing counsel/party and does not review and/or digest the information, it may be less likely that the lawyer will be later disqualified.  A lawyer should always consider notifying opposing counsel of receipt of any confidential/privileged information/documents.

…be careful out there! cuments, no matter what their source.

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.

                THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UP

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.L and other issues.

 

 

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Florida Supreme Court reverses Referee, finds lawyer guilty of dishonesty, and increases discipline from 10 day to 91 day suspension

Hello everyone and welcome to this JACPA Ethics Alert. This Ethics Alert will discuss the very recent Florida Supreme Court opinion which reversed a referee’s recommendation that a lawyer be found not guilty of dishonesty and increased the sanction from a 10 day suspension to a 91 day suspension.  The case is The Florida Bar v. Berthiaume, No. SC08–1786., — So.3d —-, 2011 WL 5217514 (Fla. SC November 3, 2011).

According to the opinion, on September 25, 2004, the lawyer signed and served a document titled “Subpoena Duces Tecum” on Pelican Bank by U.S. mail.  The purported subpoena directed the bank to produce certain records of the lawyer’s client, including checks the client had written to the lawyer from the client’s account at the bank, and which the bank had dishonored.  The purported subpoena also stated: “If you fail to produce these records and the above requested information as described, you may be held in contempt of court, punishable by a fine or incarceration or both.”  Finally, the subpoena had the phrase “civil action”; however, there was no pending civil case.  The bank refused to honor the false subpoena and, through a lawyer, filed a Bar inquiry/complaint regarding the lawyer’s misconduct.

The referee found by clear and convincing evidence that the lawyer knowingly and deliberately sent the false subpoena and was responsible for the language in the fraudulent subpoena, including the language threatening incarceration and contempt.  The subpoena was also designed the purposefully misleading subpoena to cause the bank to produce the records, even though there was no legal authority for the subpoena.

The referee recommended that the lawyer be found guilty of violating Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).  The referee also recommended that the lawyer be found not guilty of violating Bar Rules 4-4.1 (in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person), 4-4.4 (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person), and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).  Finally, the referee recommended that the lawyer be suspended for ten (10) days.

Both the lawyer and the Bar petitioned the Supreme Court for review of the referee’s report.  The lawyer argued that she should not be found guilty of violating Rule 4-8.4(c) since she was not found to have engaged in fraud.  The Bar argued that the recommended discipline of a 10 day suspension was insufficient.

After citing to other Florida Bar discipline cases where lawyers were found guilty of violating Rule 4-8.4(c) without a specific finding of fraud, the opinion found that “the facts, record, and case law show that (the lawyer) is guilty of violating (Bar Rule 4-8.4(c)) due to her intentional misrepresentation and deceitful conduct…by…deliberately crafting and mailing the fraudulent subpoena that was ‘clearly designed to cause the bank to produce the records without legal authority.’’  Further, because the record and the referee’s findings showed that the lawyer “knowingly and deliberately sent the purported subpoena with the offending language,” which was “clearly designed to cause the bank to produce the records without legal authority,” and thus “clearly misleading”, the lawyer was guilty of violating Bar Rule 4-8.4(c).

After again discussing various Bar discipline cases, the opinion also rejected the referee’s recommended sanction of a ten (10) day suspension since it did not have a reasonable basis in existing case law and imposed a ninety-one (91) day suspension.  The suspension is “rehabilitative” and will require that the lawyer file a Petition for Reinstatement and show rehabilitation and fitness to practice before a referee before she will be able to resume practicing law.

Bottom line: while the facts in this case appear to be quite blatant, this case finds that fraud does not have to pled and argued by the Bar to prove a violation of Bar Rule 4-8.4(c).  This is also another example of the Supreme Court of Florida rejecting the findings and sanction recommendation of a referee and significantly increasing the discipline imposed on the lawyer. …be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Florida 2nd DCA disqualifies bank’s law firm in foreclosure related action since it also represented the defendant’s former lawyer in related malpractice claim

Hello everyone and welcome to this JACPA Ethics Alert.  This Ethics Alert will discuss the recent (September 21, 2011) Second District Court of Appeal opinion which held that a law firm which represents a defendant’s former lawyer in a related legal malpractice litigation must be disqualified.  The case is: Frye v. Ironstone Bank, f/k/a Atlantic States Bank, 69 So.3d 1046 (Fla. 2d DCA 2011).

In Frye, the bank filed a foreclosure action against an LLC which later filed bankruptcy.  After the property was sold, there was a deficiency and the bank proceeded against Mr. Frye for payment of the deficiency pursuant to his personal guarantees.  Frye was initially represented by a lawyer in a south Florida law firm.

While the litigation was pending, Frye terminated the law firm’s services and obtained new counsel.  He also initiated a legal malpractice action against the lawyer and the firm related to the representation in the foreclosure/deficiency proceedings and other matters involving loans and personal guaranties.  The malpractice action alleged that the lawyer and the firm obtained “confidences of (Frye) during their representation, including, without limitation, information gleaned from performing estate and asset planning (for Frye) giving (the lawyer and law firm) intimate knowledge of (Frye’s) financial circumstances.”

Another law firm (Henderson Franklin) was retained by the bank for representation in the deficiency proceedings.  The law firm was also retained to represent Frye’s previous lawyer and law firm for representation in the legal malpractice action.  Frye filed a motion to disqualify the Henderson Franklin law firm.

After a hearing, the trial court judge observed on the record that “the basic problem with (Mr. Frye’s) position is there is no attorney/client relationship between Mr. Frye and Henderson Franklin. Therefore, there is no irrefutable presumption because you’ve not established an attorney/client relationship.”

The judge also stated that Frye failed to meet his burden of establishing “the procedural and substantive requirements for disqualification because, number one, Frye and Henderson Franklin never shared an attorney/client relationship, and, number two, there has been no evidentiary showing that the matter in which Henderson Franklin is representing … (the former lawyer and firm) … are the same or substantially related matters.” The written order denying the motion to disqualify made similar findings and conclusions and cited to Kaplan v. Divosta Homes, L.P., 20 So.3d 459 (Fla. 2d DCA 2009).  After the judge issued a written order, Frye filed a Petition for Writ of Certiorari requesting that the order be reversed and that the firm be disqualified.

The 2nd DCA opinion reviewed and discussed the case law, including State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630 (Fla.1991), and noted that the existence of the attorney/client relationship between Frye and the lawyer/firm created an irrefutable presumption that confidential information was disclosed during the representation of Frye in the bank’s action on the guaranty and in estate and asset planning matters.

Further, under Florida Bar Rule 4-1.6(a), a lawyer is prohibited from revealing information relating to the representation without the former client’s informed consent; however, because Frye sued the lawyer/firm in connection with that representation, under Bar Rule 4-1.6(c)(4) and (e), the lawyer would be permitted to reveal confidential information and communications to the extent necessary to defend the malpractice action.

As a consequence, by representing the former lawyer/firm in the legal malpractice litigation, Henderson Franklin gained an informational advantage. The opinion cited the case of Adelman v. Adelman, 561 So.2d 671 (Fla. 3d DCA 1990).  In that case, the lawyer was disqualified from representing a party in a marriage dissolution action when the lawyer also represented the opposing party’s ex-lawyer in a legal malpractice action brought by the opposing party arising out of the same dissolution action.

The opinion also cited to Castellano v. Winthrop, 27 So.3d 134 (Fla. 5th DCA 2010) (disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party’s counsel); and Greig v. Macy’s Ne., Inc., 1 F.Supp.2d 397 (D.N.J.1998) (requiring disqualification of counsel under facts similar to those in Adelman and in this case).

Based on the above analysis and case law, the court found that the lawyer and law firm should have been disqualified, granted certiorari, and remanded the case to the trial court to render an order of disqualification.

Bottom line:  This appellate opinion (and underlying case) illustrates the somewhat complicated and nuanced analysis and application of conflict of interest issues related to former clients.

…be careful out there!

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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Florida State Courts Technology Committee says mandatory electronic filing should be fully implemented before the end of 2013

Hello everyone and welcome to this JACPA Ethics Alert.  This Ethics Alert will discuss the recent (October 7, 2011) Florida Courts Technology Committee (FCTC) Supplemental Comments and Plan filed with the Supreme Court of Florida indicating, inter alia, that e-filing should be implemented by the end of the year 2013 as well as a plan for implementation.  The case is: In Re: Amendments to the Florida Rules of Civil Procedure, Florida Rules of Judicial Administration, Florida Rules of Criminal Procedure, Florida Rules of Juvenile Procedure, Florida Probate Rules, Florida Small Claims Rules, Florida Rules of Appellate Procedure, Florida Family Law Rules of Procedure, Florida Supreme Court Case No. SC11-399.  The Supplemental Comments of the FCTC is also attached.

As I indicated in an earlier Ethics Alert, the Florida Supreme Court issued an Order requiring the development of a schedule for clerks to be ready to receive electronic filings and also to suggest a date wherein electronic filing would be required for all court documents filed by lawyers.  The Florida Courts Technology Committee met in late September 2011 and subsequently filed the supplemental comments and a plan stating that mandatory e-filing should be implemented by the end of 2013.

The schedule is based upon assurances by the Florida Association of Court Clerks that all counties will be ready to accept all civil filings no later than July 1, 2012 and all criminal filings no later than December 31, 2012 and mandatory e-filing in every county court division shall be effective no later than 9 months from the initial date that the clerk begins accepting e-filings through the statewide e-portal, which would be nor later than April 1, 2013, for all trial court civil divisions, and no later than September 30, 2013, for all trial court criminal divisions.

The Florida Courts E-Filing Authority Board (which oversees the Internet portal which will be the access to the e-filing system) unanimously endorsed the FCTC’s proposed schedule on September 28, 2011.  Florida lawyers should be prepared to electronically file all court documents well before the end of 2013 and many lawyers could have an earlier deadline for the electronic conversion depending upon the county.

Finally, appellate court clerks should be ready to accept electronic filings by July 1, 2012, with e-filing becoming mandatory for attorneys by October 1, 2012; however, nothing prevents the appellate clerks from setting up e-filing procedures ahead of the deadlines and implementing earlier mandatory e-filing.

The proposed schedule is being provided to interested parties and to a workgroup which is considering procedural rules necessary for e-filing.  The entire package will then be submitted to the Florida Supreme Court.  Oral argument on the procedural rule amendments which will be required to implement the mandatory e-filing, including the final proposed schedule, is scheduled for tomorrow, November 3, 2011.

Bottom line:  As I have said before, Florida lawyers get ready because mandatory e-filing is coming soon to a Florida courthouse near you (and apparently no later than the end of 2013).  Stay tuned…

…and be careful out there!

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