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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