Monthly Archives: February 2012

Illinois lawyer receives 60 day suspension for disparaging judges, violating client confidentiality on blog, and failing to correct client’s false sworn statements

Hello welcome to this Leap Day edition of the JACPA Ethics Alert blog which will discuss the Illinois assistant public defender who was charged with revealing identities and confidences of criminal defendant clients in her blog, disparaging judges, and failing to advise the court of a client’s false statements with regard to the use of drugs.

A disciplinary complaint was filed by the Illinois disciplinary commission.  On May 18, 2010, the Illinois Supreme Court suspended the lawyer’s license to practice law in Illinois for 60 days, effective June 8, 2010.  Since the lawyer was also admitted in Wisconsin, a reciprocal discipline case was opened in that state and the lawyer agreed to a suspension to practice law in Wisconsin for 60 days, effective July 25, 2011.  The Wisconsin Supreme Court case is In re: Disciplinary Proceedings against Kristine Peshek, Case No. No. 2011AP909–D.  The Wisconsin disciplinary opinion is attached.

According to the Wisconsin disciplinary opinion (and the Illinois disciplinary complaint), the lawyer’s public blog contained confidential information about her clients and derogatory comments about judges and had information sufficient to identify those clients and judges using public sources.  She also said that a judge was “a total a—hole” (using the actual term) and called another “Judge Clueless”.  Finally, she also failed to inform the judge of her client’s false statements with regard to the use of methadone and in one of her blogs about that incident; the lawyer described her conversation with the client as follows:

“Huh? You want to go back and tell the judge that you lied to him, you lied to the pre-sentence investigator, you lied to me? And you expect what to happen if you do this? I’ll tell you what would happen; the sentence just pronounced would be immediately vacated and you’d go to prison, that’s what would happen.”

The Wisconsin opinion found, in mitigation, that the lawyer “worked tirelessly as a public defender for her entire career…and asked the panel to consider the traumatic event” wherein she was punched by a client in court.  The lawyer also realized the risk of revealing client confidences and “regretted her mistake.”  Further, “(a)t no time did (the lawyer) discern any risk of disclosing client confidences, because she believed she adequately concealed her clients’ identities to avoid inappropriate disclosure and (a)fter the issue was brought to her attention, she removed all entries related to client matters.  As far as her client’s misinforming the court, counsel advised that (the lawyer) misunderstood her ethical obligations at that point and had no intention of assisting her client in a fraud on the court.”

Bottom line: This is an update on a case that I have discussed many times at my seminar and webinar presentations regarding technology and preserving lawyer/client confidentiality.  This lawyer appears to have been venting about her stressful job and paid the price for that venting with a suspension of her license to practice law for 60 days in 2 states.

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 Attorney discipline, Attorney Ethics, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer discipline, Lawyer Ethics and Professionalism

Guidelines for Lawyer Networking Sites were revised and posted on The Florida Bar’s website on January 10, 2012

Hello welcome to this edition of the JACPA Ethics Alert blog which will discuss the revisions to the Guidelines for Networking Sites which were posted on The Florida Bar’s website www.floridabar.org on January 10, 2012.

The Guidelines for Networking Sites were initially approved by the Florida Bar’s Standing Committee on Advertising after the Supreme Court of Florida implemented revisions to Rule 4-7.6 in 2009 (that revised rule was later stayed and then withdrawn by the Court).  The revised guidelines state verbatim as follows (with the most relevant sections in bold):

1.         “Pages of individual lawyers on social networking sites that are used solely for social purposes to maintain social contact with family and close friends are not subject to the lawyer advertising rules.

2.         “Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. These pages must therefore comply with all of the general regulations set forth in Rule 4-7.2.  Regulations include prohibitions against any misleading information, which includes references to past results, promises of results, and testimonials.  Regulations also include prohibitions against statements characterizing the quality of legal services. Lawyers and law firms should review Rule 4-7.2 in its entirety to comply with its requirements.  Additional information is available in the Handbook on Lawyer Advertising and Solicitation on the Florida Bar website.

3.         “Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer.  Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, or persons who have requested information from the lawyer.  Direct e-mail must comply with the general advertising regulations set forth in Rule 4-7.2 as well as additional requirements set forth in Rule 4-7.6(c).  Information on complying with the direct e-mail rules is available in the Handbook on Lawyer Advertising and Solicitation and in the Direct E-Mail Quick Reference Checklist on the Florida Bar website.

“Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.  If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.  If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information.  In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.

Lawyers who post information to Twitter whose postings are generally accessible are subject to the lawyer advertising regulations set forth in Rule 4-7.2 as above.  A lawyer may post information via Twitter and may restrict access to the posts to the lawyer’s followers, who are persons who have specifically signed up to receive posts from that lawyer.  If access to a lawyer’s Twitter postings is restricted to the followers of the particular lawyer, the information posted there is information at the request of a prospective client and is not subject to the lawyer advertising rules under Rule 4-7.1(h).  The information remains subject to the general misconduct rule, which prohibits any conduct involving fraud, deceit, dishonesty or misrepresentation under Rules 4-7.1(i) and 4-8.4(c).  Any communications that a lawyer makes on an unsolicited basis to prospective clients to obtain “followers” is subject to the lawyer advertising rules, as with any other social media as noted above.

(a) page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.

“In contrast with a lawyer’s page on a networking site, a banner advertisement posted by a lawyer on a social networking site is subject not only to the requirements of Rule 4-7.2, but also must be filed for review unless the content of the advertisement is limited to the safe harbor information listed in Rule 4-7.2(b)(1). See Rules 4-7.6(d), 4-7.7(a)(2) and 4-7.8(a).”

The only Florida Bar Rule that currently refers to the internet is Rule 4-7.6, which states that lawyer websites are “information upon request” and not subject to regulation under the advertising rules (except for disclosure, general misconduct, and misleading or false content) or the filing requirements.

In my opinion, it is not clear that, inter alia, “invitations (sent by the lawyer) directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis, unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer” are solicitations in violation of Rule 4-7.4(a).  It is also not clear under the current rules that lawyers “who post information to Twitter and whose postings are generally accessible would be subject to the lawyer advertising regulations set forth in Rule 4-7.2.”

Bottom line:  These guidelines have no binding effect; however, it is important for lawyers to be aware of them since they can and will be used in reviewing potential or alleged advertising issues and rule violations related to electronic media.  As I have previously stated, the Supreme Court of Florida is considering the comprehensive revisions to the Bar Advertising Rules which were filed by the Bar in July 2011; however, none of the current rules even refer to networking/social media sites (and the current rules were implemented before these sites were even in existence and/or used by lawyers).

I am sure that there will be much more to come on these advertising issues.  I will reserve for now any comments on whether the enforcement of certain of these guidelines (and any future Bar rules) may constitute an infringement on lawyer’s right to free speech under the U.S. Constitution.  Stay tuned…

…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, joe corsmeier, Lawyer Ethics and Professionalism

Federal 9th Circuit says it won’t remove an Arizona federal prosecutor’s name from its opinion finding that he committed misconduct at trial

Hello and welcome to this JACPA Ethics Alert blog which is an update of my January 23, 2012 Ethics Alert and will discuss recent Federal 9th Circuit’s recent amended opinion which refused to remove a prosecutor’s name form an opinion finding that the prosecutor committed misconduct and criticized the U.S. Attorney’s Office for trying.  The amended opinion is U.S. v. Lopez-Avila, No. 11-10013, D.C. No. 4:10-cr00035-CKJ-JCG-1 (Fed. 9th Cir. Order and Amended Opinion February 14, 2012).

To refresh your memory, the underlying case involved an individual who was stopped while driving into Arizona from Mexico with more than 20 pounds of cocaine hidden in her car.  She pleaded guilty to drug trafficking but later claimed she had been forced to carry the drugs and was allowed to withdraw her plea and go to trial.   After she testified about the alleged threat, the assistant U.S. attorney asked her if she remembered testifying under oath to a federal magistrate at an earlier hearing.

The federal prosecutor (who was specifically named throughout the opinion), indicating that he was quoting the transcript, asked if she remembered the magistrate asking her, “Has anyone threatened you?” and she replied, “No.”  The prosecutor then said to her: “you were not threatened in this case … was that a lie?” and the defendant said it was; however, the magistrate had actually asked her: “Has anyone threatened you or forced you to plead guilty?”  The defense lawyer read the transcript of the hearing during a court recess and told the judge, who agreed that the prosecutor had distorted the question and declared a mistrial.

The primary issue before the 9th Circuit on appeal was whether double (former) jeopardy prevented the prosecution from retrying the defendant.  The opinion stated that it did not prevent a retrial since former jeopardy applies only after a prosecutor deliberately causes a mistrial, and not merely engages in manipulation to try to win the case.  The opinion also said that the trial judge would have the option of dismissing the case if the prosecution that would be an appropriate remedy for the prosecutor’s misconduct.

After the 9th Circuit issued its January 12, 2012 opinion describing a federal prosecutor’s alleged misconduct which resulted in a mistrial of a drug-trafficking trial in Tucson, Arizona, the U.S. Attorney’s office filed a motion requesting that the court to remove the prosecutor’s name from the published decision and substitute the word “prosecutor”.

The amended opinion added language to the initial opinion addressing this request and criticized the U.S. Attorney’s Office with some scathing language stating: “(w)hen a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again…we cannot find a single hint of appreciation of the seriousness of the misconduct. …instead, the government attempts to shift blame” to the defense lawyer in the case.”

The amended opinion also states: “(the prosecutor’s) job is not just to win, but to win fairly, staying within the rules.” Finally, the amended opinion also noted that the U.S. Attorney’s Office in Arizona regularly issues press releases naming prosecutors who win important cases and “(i)f federal prosecutors receive public credit for their good works-as they should-they should not be able to hide behind anonymity when they make serious mistakes.”

Bottom line:  Ouch.  It appears that the U.S. Attorney’s Office’s attempt to shield the federal prosecutor from being specifically identified as having committed misconduct before the completion of an ethics investigation backfired and created more negative media attention than the initial opinion.  I am sure that this is much to the chagrin of the prosecutor whose alleged misconduct was featured in the original opinion as well as those in the U.S. Attorney’s Office who believed (and may still believe) that this was a good idea.

…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

Recent Florida Supreme Court opinion increases referee’s recommended discipline from 90 to 91 day suspension

Hello and welcome to this Ethics Alert which will discuss the recent (February 16, 2012) Florida Supreme Court opinion which increased a referee’s recommended discipline from a 90 to a 91 day rehabilitative suspension.  The case is: The Florida Bar v. Gwynn, —So.3d—, 2012 WL 489234 (Fla. 2012).

The referee found that the lawyer represented a client in a bankruptcy matter and, during the representation; she failed to expedite the litigation and filed numerous motions for sanctions against opposing counsel and other frivolous claims which “needlessly” delayed the bankruptcy proceedings.  The referee also found that by failing to take substantive action in the case, the lawyer failed to competently represent her client and recommended that the lawyer be found guilty of violating Bar Rules: 4-1.1 (lack of competence); 4-3.2 (failure to expedite litigation); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); and 4-8.4(d) (lawyer conduct in connection with the practice of law that is prejudicial to the administration of justice).

The referee also found that on, April 26, 2006, the bankruptcy judge entered an order finding that the lawyer had acted in bad faith as a result her multiple frivolous filings.  The order cited numerous instances where the lawyer acted dishonestly, incompetently, and in bad faith, specifically that she: (1) filed frivolous claims to harass her opponent and opposing counsel; (2) failed to research and verify claims she advanced in motions she filed with the court; (3) engaged in willful abuse of the judicial system; and (4) continually made allegations, both in pleadings filed with the court and in her testimony before the court, that were simply incorrect or false.  The order found that the lawyer’s conduct was “objectively unreasonable and vexatious” and “sufficiently reckless to warrant a finding of conduct tantamount to bad faith … for the purpose of harassing her opponent.”  The April 26, 2006 order imposed a $14,000.00 sanction and referred the matter to The Florida Bar for review and was affirmed by the United States District Court, Southern District of Florida.

Based on the above facts, the referee recommended that the lawyer be found guilty of violating the following additional Bar Rules: 4-3.1 (lawyer shall not bring or defend a proceeding or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous); 4-3.3(a)(1) (lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 4-4.1(a) (in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person); 4-4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); 4-8.4(c) (dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (conduct in connection with the practice of law that is prejudicial to the administration of justice).

Finally, the referee found that despite the fact that the lawyer no longer represented any party in the case, she continued to file pleadings and papers with the federal bankruptcy court, and that on May 15, 2006, and the court entered an “Order Directing Mary Alice Gwynn, Esquire to Stop Filing Notices of Filing.”  In this order, the bankruptcy judge found that the lawyer had filed hundreds of pages of documents pursuant to notices of Filings or notices to the court and directed her to stop filing such items unless specifically ordered to do so by the court or unless mandated by either the bankruptcy rules or the local rules.

On June 7, 2006, the court entered another order finding that even after the May 15, 2006 order was entered, the lawyer continued to file notices of filing, in defiance of the bankruptcy court’s order and she “improperly attempted to influence [the] court by filing numerous Notices of Filing containing inappropriate hearsay documents that are unrelated to any pending contested or adversary proceedings,” and in doing so, she “engaged in unprofessional conduct before [the] court.”  The lawyer was fined $500.00 and the court ordered that she be fined $250 for each future document she filed in defiance of the court order.

Based on these facts, the referee recommended that respondent be found guilty of violating the following additional Bar Rules: 4-3.4(c) (lawyer knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); 4-3.5(a) (seeking to influence a judge, juror, prospective juror, or other decision maker except as permitted by law or the rules of court); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); and 4-8.4(d) (lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

The referee recommended that lawyer be suspended for 90 days and pay the Bar’s costs.  The lawyer sought review of the referee’s findings of fact and recommendation as to discipline. The Bar filed a cross-petition for review, seeking review of the referee’s recommendation as to discipline.

Citing two prior Bar discipline cases, Florida Bar v. Head, 27 So.3d 1 (Fla.2010) (1 year suspension) and Florida Bar v. Nunes, 734 So.2d 393 (Fla.1999) (3 year suspension), the Supreme Court opinion stated: “(g)iven the obvious seriousness of respondent’s misconduct in this case, we conclude that a ninety-one-day (rehabilitative) suspension is warranted.”

Bottom line:  Based on the facts in the opinion, it is not surprising that the Florida Supreme Court increased the discipline in this case from that recommended by the referee; however, it is somewhat surprising that the suspension was not longer.  In any event, the increase in the length of the suspension from 90 to 91 days does mean that the lawyer will be required to file a Petition for Reinstatement, must prove rehabilitation, and may potentially effectively be suspended for an additional 6 to 12 months.

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

Florida Bar’s Board of Governors will review and vote on proposed trust account rule revisions requiring a written trust account plan

Hello welcome to this edition of the JACPA Ethics Alert blog which will discuss the recent Florida Bar News report that The Florida Bar’s Board of Governors will review and potentially vote on proposed amendments to the Bar’s trust account Rules at its March 23, 2012 meeting in Pensacola.

The Disciplinary Procedure Committee has been working on the revisions for more than a year and forwarded the proposed revisions to the BOG during its Tallahassee meeting last month and the proposed revisions will be on the agenda of the March 23, 2012 BOG meeting.

The proposed rule amendments would require lawyers to prepare a written trust account plan which identifies the individuals in the law firm who are primarily responsible for the IOTA trust account, including the required monthly reconciliations and the annual list.  The plan must also specify the duties of lawyers who are not responsible for the trust account or supervise the trust accounting, but have clients with funds in the trust account.  The plan must also identify what associates and other non-managing members should do if they suspect that there is a problem with the firm’s trust account.

The proposed trust account rule amendments also address how electronic transfers from trust accounts must be accomplished, what documentation is required as part of such transfers, and restricts when electronic transfers can be used.  The amendments reaffirm that lawyers are prohibited from signing blank trust account checks and would also require that each trust account check be signed by a lawyer, not a non-lawyer employee of the firm or with a signature stamp.

Finally, the proposed revised comments have sample forms, including checks and monthly reconciliation forms, as well as sample trust accounting policies which may be used by law firms.

Bottom line:  If you have an IOTA trust account in your practice, get ready to prepare your written plan and I will keep you posted on the progress of these proposed trust account rule changes.

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

Florida Bar’s Board of Governors votes to pursue rule amendments to prohibit actors from portraying “authority figures” in advertisements

Hello welcome to this edition of the JACPA Ethics Alert which will discuss the recent (January 27, 2012) vote of The Florida Bar’s Board of Governors (BOG) to pursue revisions to change the Bar Rule amendments pending before the Supreme Court of Florida to prohibit the use of actors to portray “authority figures” such as judges and police officers in lawyer advertisements.

The Board’s Review Committee on Professional Ethics voted to pursue the changes to the proposed Rules 4-7.3 and 4-7.5 and the BOG agreed with this recommendation.  The BOG also waived second reading to allow the changes to be immediately be filed with the Florida Supreme Court and considered at the oral argument scheduled for March 7, 2012.

As I previously advised, the BOG recently considered an advertising appeal where a law firm wanted to use an actor portraying a judge to act as a spokesperson and endorse the law firm’s services.  The BOG voted to take no action on that appeal and advised the law firm that it would not be prosecuted for running the advertisement; however, the firm would have to stop using the advertisement if it is prohibited in the rule amendments that are pending before the Court.

The Florida Bar’s Standing Committee on Advertising also voted in December 2011 to recommend that lawyers no longer be allowed to use actors portraying police and other authority figures in advertisements.  The Bar and the Advertising Committee had allowed the use of actors portraying police officers since 2006.

If approved, Bar Rule 4-7.5 would be changed to state that an advertisement would be considered “unduly manipulative or intrusive” (and therefore prohibited) if it “uses an authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, to endorse or recommend the lawyer or act as a spokesperson for the lawyer.”

Bottom line:  If the Bar advertising rule amendments are ultimately approved and implemented by the Florida Supreme Court, lawyers will no longer be allowed to use “authority figures” in advertisements.

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

Illinois Disciplinary Panel Recommends 60-Day Suspension for State Prosecutor Who Pulled Gun on Process Server

Hello welcome to this edition of the JACPA Ethics Alert blog which will discuss media reports that an Illinois Bar disciplinary panel has recommended that a former elected Illinois State’s Attorney be suspended from practice for 60 days for pulling a gun on a process server.  The case is: In the Matter of: Allen W. James, Attorney-Respondent, No. 6239218, Commission No. 08 SH 105 (February 3, 2012).

According to the Report and Recommendation, the elected State’s Attorney for Union County, Illinois, Allen W. James, was approached by a process server to serve him with a personal lawsuit on March 19, 2008.   The process server identified himself, displayed a badge, stated that he was a process server, and called the lawyer by name.  The lawyer then pulled a loaded .380 semi-automatic handgun from his pocket and pointed it at the process server.  The process server identified himself again, and the lawyer continued to point the gun at him.  The process server then threw the summons and complaint at the lawyer’s feet and left.

The Report indicates that lawyer claimed that he put his hand on his .380 pistol because he feared for his safety after being approached by an unknown man; however, the lawyer, who had admitted that he had evaded service of a personal lawsuit at his office and home the previous day, either knew or had a strong suspicion that the man was a process server.

The lawyer was initially charged with two felonies but subsequently stipulated to a charge of misdemeanor aggravated assault at a bench trial.  He was ordered to pay a $1,500.00 fine and forfeit the pistol and his record would be “cleared” if he successfully completed a period of supervision.

When asked if he was remorseful, the lawyer stated: “[t]his was a situation that I feel the process server, Mr. Dees, put me in” and “[a]s far as remorse over that incident, yeah, I’m sorry it happened, but again I didn’t put us in that position and nothing happened there that in my scheme is remorse.”  The panel’s report states that it considered the lawyer’s lack of remorse to be a significant aggravating factor.

According to media reports the lawyer was narrowly defeated for reelection as State’s Attorney in the November 2008 election and he is now in private practice in Illinois.

Bottom line: a lawyer who pulls a gun on a process server might be prosecuted criminally and be suspended from practice and, if the lawyer is a state official, he or she may lose the next election…

…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