Monthly Archives: December 2011

Kansas lawyer who appeared in court hearing and allowed defendant’s twin to be identified as the defendant apparently is in some trouble

Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss the recent media reports of a Kansas lawyer who is apparently in trouble for allegedly  knowingly allowing her client’s identical twin brother to be identified as the defendant at a preliminary hearing in a criminal case.  The case is State of Kansas v. Darrel W. White Jr.

According to recent reports in the Kansas City Star and elsewhere, a criminal defense lawyer allegedly appeared at a preliminary hearing and misrepresented to a judge that the man sitting next to her during a preliminary hearing on a robbery charge was the defendant.  The county attorney has now moved to have the lawyer held in contempt and removed from the case and was quoted as saying that she is required to report the lawyer to the Missouri Bar.

The reports state that when the judge called the case of State of Kansas v. Darrel W. White Jr., he asked the lawyer if her client was in custody and she replied that he was in the courtroom. The judge then asked “Mr. White” to come forward; however, it was Darion White, Darrel’s identical twin brother, who came to the defense table.  After the proceedings began, the prosecutor called the victim to testify.  She described the strong-armed robbery and identified the man sitting next to the lawyer at the counsel table as the person who committed the crime.  At or around that time, the arresting police officer in the case, who was outside the courtroom waiting to be called to testify, noticed that a man leaving the elevator appeared to be the person he arrested.

The police officer told the prosecutor and the judge ordered a recess in the proceedings.  According to the media reports, after the proceedings were again commenced, the lawyer conceded that the man at the counsel table was not her client; however, she claimed that she never intended to mislead the court.  She told the judge “(m)y client was not planning on testifying at all…(m)y client was not the one I called to come to the table.  This honorable court asked for Mr. White, and that’s who’s at the table today, Mr. White.”

As one might expect, the judge was not amused.  According to the reports, he stated in a recording of the hearing “(i)t was presented to me, it was presented to this court and it was presented to the state that the person sitting at that table was your client…(w)as it your intention to bring someone else up to this counsel table so she (the victim) could misidentify him?”  The lawyer responded “No, your honor.”

Unfortunately for the lawyer, when the twin bother who was not the defendant testified as to what had occurred, he said the only reason he was there was because the lawyer “asked me to.”  The judge then announced that he was continuing the hearing until Jan. 9, 2012 and that he would let the presiding judge of the judicial circuit decide whether the lawyer would be removed from the case.

Bottom line:  do not do this…I repeat, do not do this!

…and be careful out there!

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Connecticut lawyer tells disciplinary panel and grievance committee that lawyer/client romantic relationships lead to better representation

Hello everyone and welcome to this JACPA Ethics Alert which will discuss the recent media reports of a Connecticut lawyer who stated to a state lawyer disciplinary panel (and wrote in a brief to the statewide grievance committee) that lawyers who have romantic relationships with their clients provide better representation and that disciplinary rules which limit or prohibit such relationships are counterproductive and violate the U.S. Constitution.

According to the media reports, including the Norwich Bulletin, Connecticut’s lawyer discipline system began investigating the lawyer when it received a complaint alleging that he began representing and having a personal romantic relationship with a woman he was representing in an ongoing divorce proceeding.  The discipline complaint was made by the former (or soon to be former) spouse.

The lawyer apparently told the disciplinary panel investigating the matter: “My advice to a woman going through a divorce is, find a competent trial lawyer and make him your boyfriend.”  He is also quoted as saying:  “There is not a conflict of interests.  It’s a coincidence of interests. I know that’s not what they want to teach at Sunday school.  But I live in the real world.”  The lawyer said he has been representing his fiancée in the divorce for the past five years.

The lawyer (who maintains primarily a bankruptcy practice) recently filed a 75-page brief with the Connecticut statewide grievance committee appealing a decision made by a two-person disciplinary panel that he violated Connecticut lawyer discipline rules by engaging in the relationship.  The lawyer argued that the panel’s report was “replete with errors”.  Further, “(t)he panel has no business making such a recommendation” for him or any other lawyer.  “This is aggressive judicial paternalism versus freedom of association”.

The lawyer was also quoted as saying:  “There are fundamental constitutional ramifications here. This is the type of fight I live for”  and that he believes that lawyer discipline rules limiting or prohibiting such personal relationships are unconstitutional and infringe upon a lawyer’s freedom of association and also are evidence of an unnecessarily “aggressive judicial paternalism.”  He said that he is prepared to testify before the statewide grievance committee and also to request that the ACLU appeal the case further, even possibly to the U.S. Supreme Court.

Bottom line:  The various state Bar Rules prohibiting or limiting romantic (i.e. sexual) relationships between lawyers and clients are designed to protect the client, the legal profession, and lawyers since such relationships may arguably cloud judgment, create conflicts of interest, and become exploitative, particularly if the client is vulnerable.  Florida has been wrestling with the disciplinary rules (and the constitutional questions) related to such relationships for years.

Current Florida Bar Rule 4-8.4(i) does not prohibit such relationships outright but contains a presumption that the client’s interests are exploited or adversely affected when the relationship starts after the representation begins.  The Bar Rule states as follows:

A lawyer shall not: (i) engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship.

If the sexual conduct commenced after the lawyer-client relationship was formed it shall be presumed that the sexual conduct exploits or adversely affects the interests of the client or the lawyer-client relationship. A lawyer may rebut this presumption by proving by a preponderance of the evidence that the sexual conduct did not exploit or adversely affect the interests of the client or the lawyer-client relationship.

The prohibition and presumption stated in this rule do not apply to a lawyer in the same firm as another lawyer representing the client if the lawyer involved in the sexual conduct does not personally provide legal services to the client and is screened from access to the file concerning the legal representation.

…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 blog 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 Bar’s Statewide Advertising Committee says that lawyers may not use actors who look like judges to recommend their services in advertisements

Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss recent Florida Bar Statewide Advertising Committee decisions on advertising issues.  Since I haven’t discussed lawyer advertising recently, I am sure you all are thankful for the change, right?

The Statewide Advertising Committee decided that a law firm advertisement may not use an actor portraying a judge (presumably in a robe) who recommends the law firm, even with a disclaimer.  The actor portraying the judge was included in a television advertisement which was sent to the Bar for review by a law firm which handles traffic ticket matters.  The proposed advertisement would also have included a disclaimer stating that the person portraying the judge was an actor, not a “real” judge.

According to The Florida Bar News, members of the statewide committee voiced concerns since the actor portraying the judge would be recommending the law firm, which would be prohibited by the Florida Canons of Judicial Conduct.  The lawyer who submitted the advertisement argued that the committee had previously allowed actors to portray police officers in advertisements.  The lawyer also said the disclaimer eliminated any chance the public would be misled to believe that the actor was “real” judge.  The Bar Advertising staff had concluded that the advertisement was misleading since it portrayed an event “that will not occur.”  After discussions, the committee voted 2-1 to uphold the Bar advertising staff’s recommendation.  According to the Bar News, the lawyer who submitted the advertisement said that he will appeal to the Bar’s Board of Governors, and, if he is unsuccessful there, he may pursue a remedy in the federal court.

The statewide committee also decided that a former judge is prohibited from using the title of “retired circuit judge,” “private judge,” or “trial resolution judge” in advertisements for the former judge’s practice, which includes the former judge’s availability to sit as a private judge as permitted by state law.  The former judge/lawyer inquired about using the three different titles as part of his advertising and the committee voted 3-0 upheld the Bar staff’s recommendation to prohibit the use of any of the titles.

In other matters, the statewide committee agreed with Bar staff that a letter from a law firm offering to send recipients a “safety magazine,” which was also prepared by the law firm and that advertises the firm’s services, is a direct mail solicitation and must comply with the appropriate Bar rules.  Finally, the committee split on whether a lawyer referral service which has purchased the naming rights to a radio station must identify itself as a referral service if its name is used as part of the station identification during FCC required station breaks.

Bottom line:  These decisions are recent examples of the continuous “struggle” to balance various constitutional protections (including freedom of speech) with the regulation of lawyer advertising and I am sure there are those on both sides of these decisions!  We are also still waiting on the Florida Supreme Court to issue an opinion on the Bar’s proposed comprehensive revisions to the lawyer advertising rules.

…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 e-mail 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 Bar President sends letter to Florida’s CFO agreeing to collaborate to curtail for-profit referral services improprieties

Hello everyone and welcome to this JACPA Ethics Alert and blog.  This is a follow up to my 11/16/11 Ethics Alert and will discuss the recent letter sent by Florida Bar President Scott Hawkins to Florida CFO Jeff Atwater agreeing to collaborate to “curtail any improprieties that (for-profit lawyer referral services) may commit”.  The Florida Bar has also appointed a special 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.

In a November 22, 2011 letter to Florida CFO Jeff Atwater responding to Atwater’s earlier letter, Hawkins said that The Florida Bar would cooperate with state efforts regarding regulation of for-profit lawyer referral services.  The letter also confirmed that the Bar’s Special Committee on Lawyer Referral Services has been working on the issue and will make recommendations.  The letter also states that “we believe that (non-lawyer for profit referral services) have created the current environment involving physicians, chiropractors, other health services providers, and lawyers.  It is also important to distinguish that there are nonprofit lawyer referral services administered by local bar associations in Florida operated to help consumers who need legal assistance…”

The letter also states that The Florida Bar’s jurisdiction is limited to the regulation of lawyer conduct, but the Bar will “will pursue appropriate measures to address violations of our rules and will endeavor to change our rules to deal with these issues if necessary.”  He confirmed that it is not within the jurisdiction of The Florida Bar to prohibit private, for-profit referral services or to regulate non-lawyer conduct; however, the letter states that “we would be very happy to collaborate with your office, appropriate state agencies, and the Legislature to curtail any improprieties these services commit against our fellow Floridians.”

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 the issue continues to simmer (boil?)  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.

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

Joseph A. Corsmeier, Esquire

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

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 lawyer accused of sexually related and other inappropriate behavior faces disciplinary complaint and sanctions

Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss the recent disciplinary complaint alleging that an Illinois lawyer, inter alia, exposed her chest to female co-workers to get their opinion on her breast augmentation surgery (twice), was intoxicated and exposed her chest to Illinois state workers at a tavern, showed nude images of herself to co-workers, threatened someone who was dating the same person, was “intoxicated or under the influence of drugs and fell to the floor screaming, then ran outside into traffic”, turned in false time sheets, and went shopping during work hours.  The case is In the Matter of: Tamara Ann Tanzillo, No. 6196864, Comm. No. 2011PR00132 (filed November 15, 2011).  I am not making this up!

According to the Illinois Disciplinary Commission’s complaint, the lawyer was admitted to practice in 1987.  She was apparently also terminated from her $118,000-a-year job with the Illinois Department of Health and Family Services in November 2009 after an inspector general report found she had gone shopping while on the clock and engaged in “arguably decadent personal behavior.  The Disciplinary Commission conducted an investigation and recently filed the disciplinary complaint which makes the following allegations:

In July 2007, the lawyer allegedly arrived at her office building smelling of alcohol, informed a guard that the “Boss Lady” had arrived before dancing the hula inside an elevator.  Also in 2007, at an after-hours event for the opening of the Chicago office of two lobbyists, she was intoxicated or under the influence of drugs and fell to the floor screaming, then ran outside into traffic.

In February 2008, at approximately 5:30-6:00 am, the lawyer allegedly called the guard at her office building and stated that she was unclothed in a car outside and needed something to wrap around her to enter the building.  Two women brought her a coat to cover herself and all three entered the building with the lawyer wearing the coat wrapped around her and covering her head and face.

On two separate occasions (no dates are provided), the lawyer allegedly exposed her chest to female co-workers at her office to request their opinion on the results of her breast augmentation surgery.  She also allegedly used her office computer to show “sexually explicit material and nude photos of herself and others” even after she had been warned not to engage in such activities (no date or dates are provided).

On April 2, 2008, the lawyer allegedly exposed her chest to two Illinois HFS officials at a tavern called J.P. Kelly’s in Springfield, Illinois.  She then spoke to the officials for several minutes.  At the time of that incident, she allegedly was unsteady on her feet and had been drinking.  Later on that same day, she allegedly went to a place called The Plaza, a downtown tavern and was wobbling and barely able to stand on her feet in the alley behind The Plaza.  She recognized a former Illinois state employee and allegedly loudly confronted the individual by stating that the former employee had “f—ing called my husband.”

On January 6, 2009 at approximately 1:30 am, the lawyer allegedly appeared at her office building dressed in sleepwear and barefoot, escorted by a man. She requested a master key from the guard, went upstairs to the executive offices, and then returned the key to the guard at the main entrance.  She and the man entered the elevator hugging and kissing.  She and her companion left the office at about 6:30 am.

In 2009, the lawyer allegedly engaged in criminal conduct by threatening a woman who was dating the same person and a criminal charge was dismissed after she completed a deferral program.  The criminal complainant alleged that the lawyer called her a “f—ing bitch”, made threats against her life, and told her that the person they were both dating had “taught her how to fire a gun”.

Finally (and more boringly), the lawyer allegedly engaged in conduct that was a breach of fiduciary duty and committed fraud by inflating her timecards and shopping while she said she was at work.

According to the Chicago Tribune, the attorney representing the accused lawyer says the disciplinary complaint is in retaliation for her refusal to fall in line with improper orders during the administration of former (and recently convicted and sentenced) Illinois governor Rod Blagojevich.

Bottom line:  Again, hopefully the bottom line is self evident.

…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.

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Illinois Discipline Board recommends that lawyer be suspended for one year after advertising on Craigslist for “secretary with benefits”

Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss the report of the Illinois Disciplinary Commission recommending that an Illinois lawyer be suspended for one year for, inter alia, advertising on Craigslist for a “secretary with benefits” and sending an e-mail to an applicant for the position stating that sexual services would be required at the interview and as a condition of the employment. The case is In the Matter of: Samir Zia Chowhan, File No. 6274702, Bar Commission No. 09 CH 53 (2011).

The Illinois Attorney Disciplinary Commission’s report indicates that the lawyer sought an “energetic woman” for his immigration law firm. The advertisement stated, in part, that “(d)uties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm… If interested, please send current resume and a few pictures along with a description of your physical features, including measurements…”

According to the commission’s report, an applicant for the legal position filed a complaint with the Illinois Bar after the lawyer sent an e-mail stating that there would be a “sexual tryout” before the employee was hired wherein the applicant would be required to perform sexual services and also that, if hired, the employee would be required to perform sexually separately for him or his partner or both at the same time.

The lawyer apparently admitted that he placed the advertisement and wrote the e-mail to the applicant, but he did not formally respond to the complaint or attend the disciplinary hearing.  The commission’s report also stated since the lawyer failed to appear, the proceedings were in the nature of a default and, unless the recommendation is reversed, the lawyer apparently will receive the one year suspension.

Bottom line:  is hopefully self evident.

…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 Supreme Court increases lawyer’s discipline from 90 day suspension to 3 year suspension for “deliberate and knowing” trust account violations

Hello everyone and welcome to this JACPA Ethics Alert which will discuss the recent Florida Supreme Court disciplinary opinion wherein the court reversed a referee’s findings that a lawyer did not engage in misrepresentation and increased the recommended discipline from a 90 day suspension to a 3 year suspension.  The case is The Florida Bar v. Watson, No. SC09-2022, — So.3d —-, 2011 WL 6090078 (Fla. Dec. 8, 2011).

According to the opinion in Watson, the lawyer accepted approximately $800,000.00 in funds from 4 separate individuals to be held in his trust account for an investment related to his client.  He wrote letters to the investors which led them to believe that the funds would remain in his trust account.  He also acquiesced to and did not advise the investors of a change in the terms of the project into which their funds would be invested.  Pursuant to his client’s instructions, the lawyer later disbursed the funds without notifying the investors.

The Bar filed a disciplinary Complaint alleging that the lawyer improperly disbursed the funds, violated the Bar trust account rules (however, his IOTA trust account was surprisingly found to be in compliance with the Bar trust rules related to recordkeeping and procedures), and engaged in dishonesty, fraud, deceit or misrepresentation.  The lawyer testified that he did not engage in misrepresentation, fraud, deceit, or dishonesty in disbursing the funds and was complying with his client’s instructions.

After hearings, the referee recommended that the lawyer be found guilty of violating trust account rules by failing to properly hold the funds as a fiduciary under Bar Rule 5-1.1(b) and that the lawyer be found to have been negligent but not guilty of misrepresentation under Bar Rule 4-8.4(c) in 2 of the counts since his conduct was not “deliberate or intentional”.  The referee also recommended that the lawyer receive a 90 day suspension nunc pro tunc to the date of an emergency suspension that was previously imposed on October 1, 2009.  The opinion rejected the referee’s findings that the lawyer did not violate Bar Rule 4-8.4(c) in 2 of the counts and imposed a 3 year suspension nunc pro tunc to the date of the emergency suspension.

The opinion further stated:

“By (placing funds in trust), the lawyer establishes a new legal relationship with the principal parties either by an expressed agreement or by an agreement implied in law… (t)he relationship that is established is one of principal and agent, where the lawyer/agent owes a fiduciary duty to all of the principals.  Absent an express agreement, the law implies that the attorney will know the conditions of the principals’ agreement and will exercise reasonable skill and ordinary diligence in holding and delivering the escrowed funds according to the agreement.  Respondent clearly had a duty to the four individuals, and he violated that responsibility.

“Respondent deliberately or knowingly engaged in these improper acts.  We find that Respondent is guilty of three violations rule 4-8.4(c), in addition to the referee’s recommendation of four violations of 5-1.1(b).  We do not view violations of rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) as minor.  The Court has clearly stated that “basic, fundamental dishonesty … is a serious flaw, which cannot be tolerated,” (citation omitted), because dishonesty and a lack of candor ‘cannot be tolerated by a profession that relies on the truthfulness of its members’ (citations omitted).  Considering this principle, the egregious nature of Respondent’s misconduct clearly outweighs the mitigation.

“The respondent in Florida Bar v. Rigg 944 So. 167 (Fla 2006), engaged in misconduct regarding client funds, committed acts involving dishonesty and misrepresentation, and violated trust account requirements. In part, he failed to properly manage his trust accounts, including real estate funds, and a paralegal allegedly stole some of the account funds.  Riggs, like Respondent, asserted that his actions were negligent and not intentional. The Court found Riggs’s actions were deliberate and knowing and met the element of intent, and found him guilty of violating rule 4-8.4(c).  Like Respondent, he was also guilty of violating rule 5-1.1(b).

“The (Riggs) Court stated:  ‘It is well settled that the misuse of funds held in trust is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate sanction (citation omitted).  However, there are cases involving attorney misconduct relating to client funds in which the attorneys were disciplined by lengthy suspensions instead of disbarments (citation omitted).’ In light of the facts of this case, a lengthy suspension is the appropriate sanction.”  (Riggs argued for a ninety-day suspension and the Court imposed a three-year suspension.)

Bottom line: as many of you already know, the increased discipline in this case is dramatic since a lawyer is automatically reinstated after a 90 day suspension; however, the lawyer must file a petition for reinstatement and show “rehabilitation” by clear and convincing evidence after a 3 year suspension.

As this opinion makes abundantly clear, all lawyers have a strict fiduciary duty to properly handle trust funds and sometimes this requires more than merely complying with the request of a client to disburse.  As I have said in the past, the Supreme Court of Florida will not hesitate to dramatically increase a disciplinary sanction if it believes that such an increase is warranted, particularly when it involves the lawyer’s trust IOTA account.

…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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Filed under Florida Lawyer Ethics and Professionalism, Lawyer Ethics and Professionalism