Monthly Archives: January 2012

Florida Bar’s Special LRS Committee looks at restricting lawyer’s participation in for-profit lawyer referral services which also make medical referrals

            Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent report in The Florida Bar News regarding proposals made to The Florida Bar’s Special Committee on Lawyer Referral Services which would restrict Florida lawyers’ participation in for-profit lawyer referral services which make other referrals.

At its January 13, 2012 meeting, the Special Committee reviewed several proposals that would restrict lawyers from participating in referral service which also handle referrals for non-legal services, including medical treatment.  The Special Committee was created to examine alleged concerns about for-profit services which provide both medical and legal referrals. The Committee reviewed four proposals and decided to send the four proposals to Bar staff and Bar Legal Counsel Barry Richard for their review and responses before the committee’s next meeting.
The Special Committee reviewed the following proposals/options at its January 2012 meeting:

1.         That a lawyer referral service shall not have (any relationship with) (any financial contractual, or ownership interest in) a medical referral service or any person, group of persons, association, organization, or entity that specifically advertises in this state to accident victims or other prospective clients primarily for the purpose of a healthcare provider filing a claim of payment of treatment of an accident or injury victim and that uses a common phone number, universal resource locator (URL), or other form of shared contact.

2.         That a lawyer shall not accept client referrals from any person, entity, or service that also refers or attempts to refer clients to any type of medical provider.

3.         That a lawyer shall not accept client referrals from any person, entity, or service that refers or attempts to refer clients to any other type of professional service.

4.         That a lawyer shall not participate in or accept referrals from a referral service unless the participants in such referral service are members of The Florida Bar or otherwise subject to the Rules Regulating The Florida Bar.

The Special Committee had tentatively approved four other recommendations at an earlier meeting:

1.         Requiring that any case referred by a for-profit service be to a specific lawyer at a firm, who would then be responsible for insuring that the referral service complies with the Bar rules. The Committee acknowledged that the Bar cannot directly regulate private referral services, but it can prohibit lawyers from joining services that do not comply with Bar rules, including rules on advertising.

2.         Requiring lawyers, when they join a referral service, to register with the Bar and provide disclosure of the relationship with the referral service.  According to the Committee, for-profit referral services are currently required to send a list of participating attorneys to the Bar, but some do not comply.

3.         Prohibiting lawyers from accepting a referral from a referral service unless the initial contact is made by the potential client.  The Committee said this would address situations, which came out at the committee’s public hearings, wherein people called a medical referral service seeking treatment after an accident, but were then met at a clinic by a lawyer or paralegal who told them they had to sign up with a lawyer before they could be treated.

4.         Recommending that The Florida Bar, possibly as part of a larger public education project, inform the public about solicitation and referral issues, including that lawyers or their representatives are not allowed to directly contact potential clients.

Bottom line: This Florida Bar Special LRS Committee is considering proposals which would effectively eliminate a Florida lawyer’s participation in for-profit lawyer referral services which also make referrals to medical providers (or to another professional referral service that refers to medical and other providers).  As I have previously reported, the Florida CFO’s office is also conducting its own investigation and is considering legislation to restrict or prohibit such referral services.  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 MISSION 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

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.


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Filed under Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer Ethics and Professionalism

U.S. Supreme Court allows Alabama death row inmate whose pro bono lawyers missed deadline to appeal state court’s denial of post conviction relief

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent U.S. Supreme Court opinion which held that an Alabama inmate on death row could appeal his conviction even though his lawyers missed the filing deadline because of the departure of his pro bono lawyers from the Sullivan & Cromwell New York law firm.  The case is Maples v. Thomas, Commissioner, Alabama Department of Corrections, — S.Ct. —-, 2012 WL 125438, U.S., January 18, 2012 (NO. 10-63).

According to the 7-2 majority opinion, authored by Justice Ruth Bader Ginsburg, Maples was tried and convicted in Alabama state court in 1997 and received the death penalty.  After his conviction, Maples was represented pro bono by two associates with Sullivan & Cromwell in New York (along with local counsel who said from the beginning that he would not become involved in any substantive work on the case).

The attorney’s fees for appointed Alabama trial court lawyers in those cases were capped at $1,000.00 for out of court time to investigate and prepare the defense, and $40.00 per hour for representation in court and his lawyers had never previously tried the penalty phase of any capital case.  The Sullivan & Cromwell associates filed a petition for post conviction relief alleging that Maple’s “inexperienced and underfunded attorneys failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct, and woefully underprepared for the penalty phase of his trial.”

The associates then left the law firm and apparently did not notify Maples or the court or move to withdraw from the representation.  An Alabama Court of Appeals denied post conviction relief.  The order denying relief was addressed to the lawyers at Sullivan & Cromwell; however, it was returned since they were no longer at the law firm.  As a result, the deadline to appeal the order passed without the notice being filed.

The Alabama state courts subsequently denied post conviction relief and the case eventually went to the U.S. Supreme Court.  The opinion found that there was cause to excuse the procedural default and that Maple should be permitted to pursue his post conviction relief.  Further, “(a)bandoned by counsel, Maples was left unrepresented at a critical time for his state post conviction petition, and he lacked a clue of any need to protect himself pro se…in these circumstances, no just system would lay the default at Maples’ death-cell door.”  The also opinion noted a report by the ABA which states that Alabama underpays appointed capital counsel and sets low eligibility requirements, requiring only five years of experience in criminal cases.  In addition, “(n)early alone among the states, Alabama does not guarantee representation to indigent capital defendants in post conviction proceedings.”

Justice Alito filed a concurring opinion and noted the “unique circumstances” of the case; however, he stated that he not believe that Alabama’s capital punishment system resulted in Maples’ situation.  “What occurred here was not a predictable consequence of the Alabama system but a veritable perfect storm of misfortune, a most unlikely combination of events that, without notice, effectively deprived petitioner of legal representation.”  Justice Scalia filed a dissent joined by Justice Thomas which stated that the federal courts should not review state criminal proceedings and that federal habeas proceedings should not be used for that purpose.

Bottom line: This is an interesting case of a missed the failure of (former) associates of a very large law firm to advise the court or their pro bono death row client that they were leaving the firm with the appeal being reinstated by the U.S. Supreme Court for a defendant on death row.  The question may be whether any of the lawyers involved at the trial and appeal levels committed any ethical rule violations and, if so, whether they should be prosecuted.  An additional underlying issue in this opinion is underfunded and understaffed public and appointed defense lawyers.
…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 MISSION 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

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.


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Federal District Court says associate in Kentucky office of Winters and Yonker can’t sue for firing him after refusing to take part in suspect referral scheme

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent opinion of the U.S. District Court for the Western District of Kentucky which held that a law firm associate has no wrongful discharge claim against the Kentucky office of Winters & Yonker for allegedly firing him for refusing to take part in what he believed was a suspect referral arrangement with medical providers.  The case is Gadlage v. Winters & Yonker, Attorneys at Law PSC, W.D. Ky., Civ. No. 3:11-CV-354-H (U.S. District Court 12/29/11).

In a lawsuit removed to federal district court, the lawyer asserted that while he was working as an associate at the Kentucky personal injury firm Winters & Yonker, he was told to steer clients toward Kentucky Spine and Rehab for medical treatment.  The lawyer said he routinely advised his clients to seek treatment elsewhere since he found it more difficult to settle claims for clients treated at Kentucky Spine and Rehab.  The lawyer also alleged that Kentucky Spine and Rehab referred hundreds of injured individuals to Winters & Yonker and in return expected an equal number of referrals to its own medical clinics.  The lawyer contended that a quid-pro-quo referral arrangement existed between the law firm and Kentucky Spine and Rehab, creating a conflict of interest under Kentucky’s lawyer ethics rules.

According to the lawsuit, Winters & Yonker allegedly told the lawyer that Kentucky Spine and Rehab was unhappy with the number of the firm’s referrals and that it would stop sending patients to the firm if it did not increase its referrals.  In addition, a spreadsheet showed that he had signed up most of the clients who were not referred to a Kentucky Spine and Rehab clinic.  The lawsuit alleged that Winters & Yonker terminated his employment because he refused to participate in the referral scheme.

Since the district court was ruling on the law firm’s motion to dismiss, the opinion took the facts alleged in the complaint as true and concluded that it did not state an actionable claim against the firm under Kentucky law.  The opinion noted that in Kentucky (as in Florida) employees generally can be fired with or without cause.  Kentucky recognizes a narrow exception where an employee’s termination violates public policy; however, the Kentucky Supreme Court previously held that the public policy supporting a wrongful discharge claim must be shown by a violation of a constitutional or statutory provision.

The lawyer argued that the firing violated public policy against conflicts of interest in lawyer/client relationships under the lawyer ethics rules promulgated by the Kentucky Supreme Court; however, the opinion stated that, in Kentucky “a public policy from a court rule is insufficient to support a wrongful discharge claim” and the supreme court’s constitutional authority to establish ethics rules does not transform those rules into the equivalent of a constitutional or statutory provision.

The opinion stated that “(a)lthough it would be reasonable to find public policy in a wider scope of legal material-and other jurisdictions do exactly that-Kentucky has fairly drawn the line at constitutional and statutory provisions.”  The opinion also rejected the lawyer’s retaliation claim stating that the law firm’s alleged conduct of firing him for refusing to participate in a quid pro quo referral scheme and contesting his claim for unemployment benefits did not constitute outrageous and intolerable behavior which is required to establish the tort of intentional infliction of mental distress.

In a footnote, the opinion commented on the lawyer’s allegation that a Kentucky statute that prohibits lawyers from soliciting clients within 30 days of an injury and forbids knowing acceptance of a client from an attorney referral service in violation of the 30-day rule.  The opinion noted that nothing in the complaint suggested that Winters & Yonker was violating that statute or that the lawyer was terminated for conforming to it.

In closing, the opinion stated: “This is not a pretty business that Mr. Gadlage has seen and fought against in his own way.  Unfortunately, Kentucky does not afford him a legal remedy in these circumstances.”

Bottom line:  The lawyer in this case made some very serious allegations against the named law firm.  We will see how this plays out and if there are any disciplinary consequences in Kentucky (if the allegations are found to be true).

…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 MISSION 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

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 


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Federal 9th Circuit Opinion says Arizona federal prosecutor should be investigated and potentially disciplined for “falsified version” of defendant’s prior sworn testimony in cross examination

Hello and welcome to this JACPA Ethics Alert and blog which will discuss recent Federal 9th Circuit opinion which found that an Arizona federal prosecutor “presented a falsified version” of the defendant’s prior testimony in a drug smuggling trial to make it appear that she had previously lied under oath.  The case is U.S. v. Lopez-Avila, No. 11-10013, D.C. No. 4:10-cr00035-CKJ-JCG-1 (Fed. 9th Cir. January 12, 2012).   If you would like to have a copy of the opinion, please send an e-mail to jcorsmeier@jac-law.com.

The defendant was charged with possession of cocaine with intent to distribute after the 9.7 kilograms of the drug was found in her car at the Nogales, Arizona border crossing in 2009.  She pleaded guilty to the charge in February 2010 but withdrew the plea a month later, telling her attorney she had been “‘forced’ to commit the crime or she would face dire consequences.”  The trial was held in late 2010 and she took the stand in her own defense.  The prosecutor asked her about her prior testimony at the hearing on the initial guilty plea where the magistrate judge had asked “has anyone threatened you or forced you to plead guilty?”  She answered no.

She later withdrew the plea and admitted committing the criminal acts and the defense rested on her claim to have been “forced” to commit it.  The prosecutor wanted to question the defendant about the above prior testimony and defense counsel objected.  After the prosecutor misquoted the actual testimony and did not advise the judge that he was altering the testimony in a side bar, the judge allowed the question and the prosecutor then asked her if she had replied “no” to the following question: “Has anyone threatened you?”  She answered yes (and also admitted that she had lied even though she had not).

The prosecutor omitted the crucial part of the question which showed that it addressed whether the defendant was forced to plead guilty to the charges both at the side bar with the judge and in his cross examination.  This altered version of the question appeared to contradict “the sole issue” in the case, which was whether the crime was committed under threat or duress.  The defense lawyer later determined that the prosecutor had misquoted the magistrate judge’s question and moved for a mistrial, which was granted.  The defense lawyer also moved to have the indictment be dismissed; which motion was denied; however, the trial court found that the prosecutor’s conduct was “deliberate” a “trial strategy” and was used to “attempt to convict” the defendant.  The appeal to the 9th Circuit followed.

According to the 9th Circuit opinion, the prosecutor told the trial court that his misquote was “intentional but (he) claimed that the reading was a fair one”; however, it called it a “half-truth”  and said that “(i)t is hard to see – and, from our vantage point as an appellate tribunal, we do not see – how a prosecutor could interpret a magistrate’s question, ‘Has anyone threatened you or forced you to plead guilty?’, asked at a run-of-the-mill guilty plea hearing, to mean ‘Has anyone threatened you to commit this offense or forced you to plead guilty?’”

The opinion upheld the trial court’s denial of the motion to dismiss the indictment based upon prosecutorial misconduct, but said that that “may not be the end of this matter.”  The opinion said that the appeals court was not the proper venue to investigate a disciplinary matter and remanded to the district court to decide whether to dismiss the indictment and/or impose discipline on the prosecutor.  In a clear intimation to the defense lawyer (or district court), the opinion also said that if a complaint is filed with the federal Office of Professional Responsibility, that entity could investigate and potentially impose discipline on the prosecutor.

Bottom line:  From my vantage point, this appears to have been a somewhat egregious manipulation of a defendant’s prior testimony by an apparently “overzealous” prosecutor.  Although he may have believed that his “reading was a fair one”, the prosecutor now faces potential disciplinary and other consequences.  This illustrates how important it is in our judicial system for the prosecutor (and defense lawyer) to act ethically and fairly for a just result and not just try to win at whatever cost.  This sense of fairness should apply in all areas of practice, not just criminal matters.  As a former Bar and criminal prosecutor, I know that this can sometimes be very daunting, but I believe that it is also crucial to the proper administration of justice.

…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 MISSION 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

 

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar’s Board of Governors Defers on Whether the Use Actors to Play Judges and “Authority Figures” Violates Bar Advertising Rules

Hello and welcome to this JACPA Ethics Alert blog which will discuss two lawyer advertising issues considered the Florida Bar’s Board of Governors (BOG) at its December 2011 meeting as reported in the January 15, 2012 issue of The Florida Bar News.  According to this report, the BOG discussed two advertising issues during an executive session at its December 2011 meeting.

The first issue was an advertising appeal related to a law firm’s plan to use an actor portraying a judge in an advertisement with the actor/judge recommending the law firm’s services.  Bar Advertising staff and the Bar’s Standing Committee on Advertising rejected the advertisement, saying it was misleading because real judges are prohibited from recommending or endorsing law firms.  I reported on the Bar Advertising Committee’s decision in my 12/16/11 Ethics Alert, which is attached.

The BOG decided to defer the matter until the Supreme Court of Florida acts on the pending comprehensive lawyer advertising rule amendments.  The BOG also decided that the law firm will not be prosecuted for using the advertisements while the advertising rule revisions are pending if the law firm makes a more prominent disclaimer that the “judge” is an actor and the law firm stops running the advertisement after the advertising rule amendments are implemented and if the BOG determines that the advertisement violates the revised advertising rules.

The second issue involved the use of actors portraying police and other “authority figures,” such as nurses and paramedics, in lawyer advertisements. These portrayals had previously been allowed in advertisements if there was a disclaimer stating that the “authority figure” was just an actor pretending to be an authority figure on TV.  The Standing Committee on Advertising recently voted to recommend that actors portraying police no longer be permitted and noted that most police departments would prohibit such an endorsement.

The BOG considered the Standing Committee’s recommendation during its December 2011 executive session and voted to direct Bar staff to review pending advertising amendments to determine how the use of authority figures in lawyer advertisements is addressed, determine whether any changes to the proposed rules would be appropriate and, if so, to present any proposed changes to the BOG at its January 27, 2012 meeting in Tallahassee along with the report on using “authority figures” such a police and judges in lawyer advertisements.

Bottom line:  The BOG has deferred prosecution of any advertisements using actors playing judges until the Florida Supreme Court implements rule amendments which address the advertisements (as long as the lawyer makes the “more prominent disclaimer” and stops using the advertisement if it is later determined to be a violation of the amended rules).  The BOG will consider the propriety of advertisements with actors portraying “authority figures” at its January 27, 2012 meeting.  If you would like to provide input to the BOG on this issue before the meeting, you can contact your local Bar Board of Governors member.

…and 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 MISSION 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

 

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Nebraska Supreme Court opinion holds that lawyer who signs client’s settlement agreement cannot be held liable for its breach

Hello and welcome to this JACPA Ethics Alert which will discuss recent Nebraska Supreme Court opinion which held that a lawyer who signs a settlement agreement under the legend, “Agreed to in Form & Substance,” was not liable for breach of the payment terms because the language and circumstances surrounding the agreement did not indicate that the lawyer intended to be bound to the agreement.  The case is RSUI Indemnity Company v. Bacon, ___N.W.2d___, 2011 WL 4502296 (Neb. 2011).  A PDF version of the opinion is attached.

In RSUI Indemnity Company, Bacon was injured on a construction site.  He sued, inter alia, his employer’s insurance company.  Bacon and the insurance company settled the claim and he and his lawyer signed the settlement agreement under language stating “Agreed to in Form & Substance”.  A dispute then arose regarding payment terms under the agreement, and the insurer sued Bacon and the lawyer for breach of contract.   Surprisingly, the trial court held that both the Bacon and the lawyer were potentially liable for any alleged breach.

The lawyer appealed, arguing that he could not be held liable as a matter of law for a potential breach.  The Nebraska Supreme Court reversed the trial court and held that the lawyer was not bound by the agreement and could not be found liable for a claim for an alleged breach of the payment terms.  The opinion looked at the language of the settlement agreement, which referred to both the lawyer who signed the agreement and another lawyer from the same firm who had not signed the agreement.

Since the insurance company conceded that the lawyer who did not sign the agreement was not bound by the agreement, the opinion then analyzed the question of whether the other attorney’s signature below the language stating “Agreed to in Form & Substance” (and there was also additional language stating that the two named lawyers would pay a “sum of money” if the agreement was breached) showed any intent to be bound.

The opinion held that the circumstances surrounding the signature did not indicate any intent by the lawyer to incur personal liability and noted that the insurer’s lawyer also had signed the agreement and nothing in the contractual language could be construed to impose liability on that lawyer.  The opinion also noted that the language was not clear regarding any intent of the lawyer to be bound by its terms.

Bottom line:  The lawyer in this case was found potentially liable by a trial court for an alleged breach of the settlement agreement between his client and the defendant.  Although the finding of potential liability was reversed on appeal to the Nebraska Supreme Court, the lawyer most likely incurred fees and expenses pursuing the appeal.

This opinion might provide some assurance to lawyers who approve and execute settlement agreements with “Agreed to in Form & Substance” language or the equivalent; however, it also shows the risk that lawyers may incur by executing settlement agreements with this type of language (and also language that may be construed to state that the lawyer agrees to pay if the agreement is breached).

…and 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 MISSION 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

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

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Utah Ethics Opinion says lawyers who allow or encourage law students to use free online research for firm work are violating ethics rules and potentially committing crime

Hello and welcome to this JACPA Ethics Alert blog which will discuss a recent Utah State Bar Ethics Opinion which concluded that, although the practice is widespread, law firms who allow their law student employees to use their free access to Westlaw, Lexis, and other research services to perform firm work are violating lawyer ethics rules and potentially committing a crime.  The opinion is Utah State Bar Ethics Advisory Opinion Committee Opinion No. 11-03 (November 15, 2011).

According to the opinion, Westlaw typically has the following language for student access:

User may, however, access Westlaw by means of User’s Law Student Password for purposes of unpaid public internships or externships (excluding those sponsored by a state or local government or a court. Any other use, including any use in connection with the employment or externship of User, if User is a student, is prohibited…).

Lexis/Nexis typically has the following language for student access:

“Students may request access to LexisNexis using their Law School Education ID . . . for academic purposes.  Academic purposes include, but are not limited to:  Research skill improvement, such as improving research efficiency and sharpening your area of law research skills as you prepare for practice,  Summer School or course work, Work as a professor’s research assistant, Internship or externship for school credit, Study for the Bar Exam”

“Academic purposes” do not include research conducted for a law firm, corporation, or other entity (other than a professor or law school) that is paying the student to conduct research, or that is passing along the cost of research to a third party. These are deemed “commercial purposes.”

According to the opinion, “(n)umerous students” have complained about what appears to be a widespread practice and that the practice involves theft of services since law students are usually given free accounts to online research services like Westlaw upon entering law school and are required to agree (in writing) to use the research services for educational or non-profit purposes only.  The opinion also states that practicing lawyers cannot expect law students to breach their contractual obligations to Westlaw.  “Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities.”

According to the opinion, “(r)equiring, encouraging or even tolerating the violation of the law student’s contractual obligation to refrain from using the services for profit is…conduct involving dishonesty or misrepresentation (and) therefore is also a violation of (Utah Bar Rule) Rule 8.4(c) (substantially the same as Florida Bar Rule 4-8.4(c)) and is also a violation of Utah Bar Rule 5.3 which requires that the lawyer to properly supervise the non-lawyer law student (substantially the same as Florida Bar Rule 4-5.3).

Bottom line:  The conclusion of this Utah Ethics Opinion is not surprising (and of course is not binding on Florida lawyers); however, it highlights how important it is for lawyers to be aware of potential ethical pitfalls unrelated to the actual practice of law.  I suspect that this issue is not (or was not) on the radar for many lawyers but maybe it is now…

…and 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

 

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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