Monthly Archives: March 2012

Washington Court of Appeals opinion finds that lawyer improperly contacted opposing party who said she was going to obtain a new lawyer

Hello welcome to this JACPA Ethics Alert blog which will discuss a recent Washington Court of Appeals opinion which found that a lawyer who responded to an e-mail from a represented opposing party who complained that her lawyer was acting against her wishes and stated that she would obtain a new lawyer violated the Washington Bar rule prohibiting a lawyer from communicating with a represented party.  The lawyer also prepared a sworn declaration which was executed by the represented party and filed with the trial court.  The opinion is Engstrom v. Goodman, Wash. Ct. App. 1st Div., No. 66557-0-I (March 5, 2012).

The lawyer represented Engstrom in a personal injury case against Hardesten (who is called Rebecca Harsten Goodman in the case caption).  After Engstrom prevailed at a mandatory arbitration, Hardesten’s insurance defense attorney filed a request for a trial de novo.  A few days later, Hardesten sent an e-mail to the lawyer stating that she did not agree to a new trial and no longer wanted to be represented by her current insurance defense lawyer.  She also asked the lawyer to contact her.

After the lawyer received the e-mail, he prepared a sworn declaration, which Hardesten signed, stating that she did not authorize her attorney to request a trial de novo.  The declaration also asserted that Hardesten was “currently seeking independent counsel” but had “not retained an attorney to date.”  The lawyer also prepared and executed a declaration wherein he confirmed that he received the e-mail from Hardesten and filed a motion to strike Hardesten’s request for a new trial with the declarations.  Hardesten’s lawyer then withdrew and her new lawyer moved to strike the two declarations as improperly obtained in violation of the Washington Bar rules and requested that sanctions be imposed.

The trial court found that the declaration was obtained by the lawyer in violation of Washington Rule of Professional Conduct 4.2 (substantially similar to Florida Bar Rule 4-4.2), which prohibits a lawyer from communicating directly with a represented party.  The trial court struck the declarations and imposed a $3,000.00 sanction on the lawyer for filing a frivolous motion.  The lawyer withdrew a few days later and Engstrom retained a new lawyer and appealed the trial judge’s order.

The Washington Court of Appeals opinion affirmed the trial court’s finding that the lawyer violated Washington Bar rule 4.2 and found that it was irrelevant that Hardesten initiated the communications by sending the lawyer the e-mail since comment (3) to Rule 4.2 expressly states that the rule applies “even though the represented party initiates or consents to the communication” and if that occurs, the lawyer “must immediately terminate communication” with the represented party, and the lawyer failed to do this.

The opinion also rejected the argument that the lawyer could properly contact Hardesten because her communication gave him reason to believe she was unrepresented.  According to the opinion, the question is whether there was a reasonable basis for the lawyer to believe that a party may be represented and, in this case, Hardesten’s attorney had not withdrawn and the lawyer had (or should have had) a reasonable basis to believe that she was still represented, notwithstanding her statement that she did not wish to be represented by that attorney.  The lawyer could (and should) have simply forwarded the e-mail to her attorney or, in the alternative, he could have submitted the matter to the court under a Washington statute that permits a judge to require proof of a lawyer’s authority to appear as counsel when there are reasonable grounds for the court to inquire.

The opinion further found that the trial court did not abuse its discretion by striking the two tainted declarations as a remedy for the violation of Rule 4.2.  With regard to the $3,000.00 sanction imposed on the lawyer, the opinion stated that the issue was not before it because the lawyer did not appeal; however, the appellate court would not have found an abuse of discretion even if the issue were before it since the lawyer had no admissible evidence to support the motion to strike Hardesten’s request for trial de novo after the two declarations were stricken and, after striking the declarations, the trial court had discretion to sanction the lawyer for filing a frivolous motion under the Washington civil procedure rules.

Bottom line:  Lawyers beware…if an opposing party who has previously been represented by counsel communicates with you (in whatever form, including electronic mail), and you have not received notice that the other lawyer has withdrawn, do not respond or contact the party.  As the court indicated in this opinion, if the lawyer of record has not formally withdrawn, the lawyer should not respond and must contact and/or forward the communication to opposing counsel and obtain clarification.

…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

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Filed under Attorney discipline, Attorney Ethics, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism

New Jersey jury foreman fined for conducting online sentencing research during trial which affected his vote in a criminal case

Hello welcome to this JACPA Ethics Alert blog which will discuss the recent media reports about a New Jersey juror who was held in contempt and fined by a trial judge for conducting research on sentencing during a criminal case and then voting to find the defendant not guilty, which resulted in a mistrial.

According to the recent media reports (including the ABA Journal online and the Cliffview Pilot online), a New Jersey judge presiding over a criminal case in which the defendant had been charged with selling 1,500 Ecstasy pills to an undercover officer reminded jurors daily and before each break not to conduct Internet research about the case; however, the foreman of the jury apparently ignored the judge’s instructions.

The juror apparently determined through his online research that the defendant would receive a minimum of 10 years in prison if found guilty of selling the 1,500 Ecstasy pills.  He subsequently voted to find the defendant not guilty and, as a result of the juror’s vote, the jury deadlocked and a mistrial was declared.  An alternate juror who lived next to another judge mentioned her concern about the research and another juror contacted the county prosecutor’s office to report it.

The trial judge recently found juror guilty of criminal contempt and fined him $500.00 and said that he did not impose the maximum penalties of six months in jail and a $1,000.00 fine for the willful violation because the juror is a father of three and recently lost his job.  The judge stated that he believed that some significant punishment was necessary to deter others from potentially doing the same thing and that should not be unreasonable to expect jurors to follow instructions about abstaining from Internet research.

According to the reports, the judge stated that he “understands instant access to seemingly endless amounts of information is a reality of today’s world.  And this fact, by and large, should be celebrated…(however), this court rejects the notion the American courtroom, with its constraints and controls developed over the centuries, with its methodical and deliberate means of proceeding, is somehow incompatible with or outdated in today’s world of high-speed information on demand. Indeed, the proliferation of electronic information renders the sterilized atmosphere of a courtroom even more important.

“When a juror conducts independent research, he bypasses the rules of evidence and allows the information to evade the judge’s scrutiny, thereby running the risk he is considering improper information and, consequently, reducing the chances of a just verdict.”  “Our system of justice cannot function if a juror’s distrust of, or lack of confidence in, the court legitimized his disobedience of its orders or if a judge’s instructions were deemed merely ‘advisory,’ with jurors free to violate them when they saw fit, even if in good conscience…jurors are not at liberty to disregard the court’s instructions, even when they fear obedience would somehow result in injustice.”

Bottom line:  Although not directly related to lawyer ethics, as all lawyers know (specifically trial lawyers), the potential that jurors may secretly access the instant information available on the Internet is an important emerging issue which may (and clearly did in this case) negatively fairness of trials and the integrity of our judicial system.  Quite frankly, to me it is also just a little bit scary…

…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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New York State Bar Association Opinion says that NY lawyers are prohibited from working for out of state law firms owned by non-lawyers

Hello welcome to this JACPA Ethics Alert and blog which will discuss the very recent New York State Bar Association Opinion which states that a lawyer who primarily practices in New York cannot be an employee of an out-of-state or foreign firm owned or managed by non-lawyers, even if non-lawyer ownership is permitted in the jurisdiction where the law firm is established.  The opinion is New York State Bar Association Committee on Ethics Op. 901.

The opinion was issued on March 14, 2012 and cited NY Bar Rule 5.4 (a) (substantially similar to Florida Bar Rule 4-5.4(a)) which prohibits a lawyer from sharing fees with a non-lawyer, and NY Bar Rule 5.4(d) (substantially similar to Florida Bar Rule 4-5.4(e)), which prohibits a lawyer from practicing law for profit with an entity that includes a non-lawyer owner or member.  The NY opinion addresses the employment of NY lawyers in law firms from such countries as the United Kingdom and Australia, which permit ownership by non-lawyer investors, as well as in the District of Columbia, where non-lawyer employees are permitted have an equity interest in law firms.

Florida, New York, and the 48 other states prohibit non-lawyer ownership of law firms; however, this issue is being addressed on both the state and national level. The ABA’s Ethics 20/20 Commission is considering whether to recommend that the prohibition in the current ABA Model Rules should be dropped.  The Commission has requested comments on its December 2, 2011 discussion paper which proposes that non-lawyers who work at a law firm to own a limited, non-controlling share of that firm.  The link is here: ABA Ethics 20-20 firm structure position paper. The commission is asking for comments by Feb. 29 which will be provided to the ABA House of Delegates at a future meeting.  The Professional Ethics Committee of The Florida Bar (PEC) is also considering the proposals.

Bottom line: Non-lawyer ownership of law firms is another hot lawyer ethics topic and this opinion could certainly add fuel to that fire.  If you would like to comment, you can respond to the ABA Ethics 20/20 Commission or the PEC.

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.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers.

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, Lawyer Ethics and Professionalism

Florida Judicial Qualifications Commission alleges that Florida County Judge improperly used judicial stationary to lend prestige for private interest and received improper contributions

Hello and welcome to this JACPA Ethics Alert blog which discusses the Miami-Dade County Judge who was recently charged by the Florida Judicial Qualifications Commission for using her judicial stationary to lend the prestige of her judicial office for a private interest and accepted improper campaign contributions.

The Notice of Formal Charges was filed on March 19, 2012 and states that a JQC panel found probable cause that a Miami-Dade County Judge violated Florida Judicial Canons when she sent correspondence on her judicial stationary to the Florida Division of Corporations which stated that a company called Florida Wellness & Rehabilitation Center had been inadvertently closed and should be reinstated, and attached a supporting affidavit.  According to the Notice, the October 14, 2011 correspondence was sent on behalf of the company’s president, Mark Cereceda, who was a friend of the judge.

The Notice also alleges that the Division of Corporations considered the correspondence to be an Order and reinstated the corporation without a fee.  According to the Notice, there was no legitimate judicial reason to send the correspondence and the judge’s use of judicial stationary constituted the “lending of prestige of judicial office to a private interest” as well as the practice of law, both of which are prohibited under the Code of Judicial Conduct.  In addition, the Notice alleges that the judge had cases before her involving corporate entities associated with Mr. Cereceda when the correspondence was sent and that she received four campaign contributions for her re-election in the amount $500.00 from entities controlled by Mr. Cereceda.

The Notice also states that the Florida Supreme Court sanctioned the judge in 2005 with a public reprimand and a $25,000.00 fine for accepting illegal campaign contributions during her unsuccessful 1998 election campaign as well as her successful 2000 election.  Under the JQC’s disciplinary procedures, the Notice constitutes formal charges against the judge, who may file a written answer within 20 days.  If the judge is found guilty of the charges, she would be subject to removal from office “and/or any other appropriate discipline recommended by the Florida Judicial Qualifications Commission.”

Bottom line:  Although this Notice of Formal Charges does not constitute final findings of fact, guilt, and/or discipline, it again raises issues related to the election of judges who must solicit and rely upon contributions during their election campaigns.  Unlike Florida Bar disciplinary matters, JQC proceedings are confidential and do not become public unless probable cause is found, which occurred here.

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 judge ethics, Florida Judicial Canons, Florida Judicial Qualifications Commission, Florida Lawyer Ethics and Professionalism, joe corsmeier, Judicial ethics, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism

Florida Supreme Court increases referee’s recommended admonishment for minor misconduct to a 91 day suspension

Hello welcome to this JACPA Ethics Alert blog which will discuss the very recent Florida Supreme Court opinion wherein the Court increased a referee’s discipline of a Florida lawyer from an admonishment to a 91 day rehabilitative suspension for misrepresenting facts in an affidavit filed with the court and attempting to limit his liability for malpractice.  The opinion is The Florida Bar v. (Koko) Head — So.3d —-, 2012 WL 851045 (Fla. March 15, 2012).

According to the opinion, The Florida Bar filed a 2 count complaint against Head and a referee was appointed who held hearings and made findings and recommendations.

In Count 1, Head represented a company called Nations Fence (Nations) in a “fiercely contested commercial tenant eviction” litigation.  The opposing party, Johnson and his company, Superior Fence & Rail of North Florida (Superior), were represented by a lawyer named Wharton.  Superior was a competitor of Nations (which was Head’s client) but was negotiating to purchase Nations’ assets, fixtures, inventory, and current job contracts.

Nations had defaulted on its lease.  On March 19, 2009, Johnson went to the Nations’ premises to pick up “furniture, fixtures, equipment and inventory” with a signed letter identifying him as an “authorized agent” of Nations.  Johnson claimed that Head illegally and unethically prevented him from removing items from the leased premises by improperly claiming a landlord’s lien for Nations.  Nancy Allen, an employee of Nations, also went to the leased premises at the same time to retrieve business records to respond to a sales tax audit.  Allen testified that she told Head and the landlord, James Lucas (who was also Head’s client), that she needed the books and records for the audit and both the lawyer and Lucas did not permit her to take the items.

The facts were unclear as to whether the landlord (Lucas), Nations, or Superior had a higher interest to the furniture, fixtures, or inventory on the premises.  The referee noted that Nations was in default of its lease and concluded that the landlord had a statutory lien on the tenant’s property that attached when the property was brought onto the premises.  The referee also found that the landlord’s lien was possessory (the landlord would have lost his lien if the property was removed from the premises), so Head’s client had a direct interest in preserving his landlord’s lien and preventing the removal of property from the leased premises and Head prevented everyone from removing any property from the premises and Head did not commit any misconduct by preserving the status quo until matters could be reviewed by a court.

Head testified that he expressly made the records available to Nations on that date; however, Allen testified that she drove to the leased premises in her car and another Nations employee drove a truck to help transport the files and she also brought banker’s boxes.  She indicated that she was there to gather the files; however, the landlord (Lucas) denied her access to the leased premises.  She stayed until about 2:30 or 3:00 pm and eventually told the truck driver to leave since she could take a significant number of files in her car.  When Head arrived, he refused to allow her to remove any files.

Head later filed the Affidavit of Compliance claiming that he had made the records available.  The referee found that Head’s testimony that he did not misrepresent the facts in his affidavit was not credible and noted that his testimony directly conflicted with the plain language of an e-mail he sent to Allen that evening, which stated that “upon receipt of the signed letter in the form I have prepared, the files you need for the audit will be made available to you.”

The Bar alleged that Head violated Florida Bar Rule 4-3.3(a), (candor towards the tribunal) and 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation) when he misrepresented in an Affidavit of Compliance which he filed with the court in the eviction case that he had made certain business records available to Allen, when he had actually denied the tenant access to those records on that date.  The referee found that Head’s statement in the Affidavit of Compliance was ”inaccurate and untrue” and recommended that Head be found guilty of violating Bar Rule 4-3.3 (but not Rule 4-8.4(c)) for filing the inaccurate and untruthful affidavit with the court.

Wharton (the lawyer for Superior) also testified that on March 19, 2009, Head misrepresented in a letter (that was posted on the leased premises) that a Complaint for distress for rent had actually been filed and used that misrepresentation to his client’s benefit.  The letter had a case number purporting to be the case number for the distress proceedings; however, that the case number had nothing to do with the landlord tenant matter.  The distress proceedings had in fact not been filed when the letter was sent and Head claimed that the incorrect case number was a simple clerical mistake.

The referee found that a case number could never have been provided because the case was not yet filed and that Head placed a fictitious case number in the letter to create a tactical benefit to protect the landlord’s lien.  The referee recommended that Head be found guilty of violating Bar Rule 4-4.1 by posting the letter on the leased premises but that “(s)uch violation was minor and of no consequence in the case.  No evidence was presented that showed that the letter was relied upon by anyone or caused damage or harm.”  The referee further found that the Bar failed to prove by clear and convincing evidence that Head intended to steal the tenant’s business and stated that the evidence offered by the parties clearly established that Respondent was only attempting to protect the landlord’s interests.

The referee recommended that Head be found guilty in Count I of violating Rules Regulating the Florida Bar 4-3.3(a) (candor towards the tribunal), 4-4.1(truthfulness in statements to others), and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

In Count II, Head represented Tastan related to allegations of water intrusion into his condominium.  Tastan filed a Bar inquiry alleging that Head had not represented him properly and that he had undermined his case by failing to provide copies of documents including an offer of settlement; drafting poor responses; delaying the case unnecessarily by requesting many extensions; responding late on several occasions to important time sensitive documents; and failing to communicate with him.  Head eventually withdrew from the representation and Tastan hired another attorney, Brad Hughes, who settled the case.  According to the referee, the record established that Head knew of Hughes’ involvement on behalf of the client shortly after he initially withdrew.

Tastan’s inquiry was initially closed by the Bar as a fee dispute; however, after a failed request for fee arbitration, Head sent Tastan a letter dated August 9, 2009 attaching a statement of claim for fees allegedly owed and stating that he would not file a lawsuit if Tastan signed a mutual general release.  Tastan did not sign the mutual release, consulted with Hughes, and forwarded the letter to the Bar with an inquiry form.  The Bar then reopened Tastan’s earlier inquiry and alleged that Head violated Bar Rule 4-1.8(h) by failing to advise Tastan of his right to independent counsel when he attempted to limit his liability with the mutual release.

Bar Rule 4-1.8(h) provides: “Limiting Liability for Malpractice.  A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. A lawyer shall not settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.”

Interestingly, Head argued to the referee that Tastan had not alleged malpractice and that the Bar neither pled malpractice nor proven it.  He also claimed that when he sent the letter, Tastan was represented by counsel in the water intrusion case; therefore, he could not violate Bar Rule 4-1.8(h) because Tastan was already represented.

The referee found that Head had a duty to advise Tastan in writing that independent representation by counsel was appropriate when he considered the mutual release and settlement and, since Head did not advise Tastan of this right to independent counsel he recommended that Head be found guilty of violating Bar Rule 4-1.8(h).

As to discipline, the referee recommended an admonishment for minor misconduct; a one (1) year probation wherein Head would be required to complete at least five hours of continuing legal education in ethics or professionalism; payment of $500.00 to The Florida Bar’s Client Security Fund, as a sanction for Head’s failure to cooperate in the Bar matter; and payment of The Florida Bar’s costs of $3,655.26.  The referee found no mitigating factors and the following aggravating factors: (a) prior disciplinary offense (admonishment for minor misconduct on November 12, 2007); (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) refusal to acknowledge wrongful nature of conduct; and (f) substantial experience in the practice of law.

The SC opinion upheld all of the referee’s findings of fact and rule violations.  As to discipline, the opinion stated “(b)y these acts, Respondent has engaged in severely dishonest conduct.  Further, with regard to violations of rule 4-8.4(c), the Court has repeatedly stated that “basic fundamental dishonesty … is a serious flaw, which cannot be tolerated.” (quoting cases)  In addition, the Court has plainly stated that it “does not view violations of rule 4-8.4(c) … as minor.” (John Vernon) Head, 27 So.3d at 8.  In fact, rule 3–5.1(b), “Minor Misconduct,” clearly provides:  (1) Criteria. In the absence of unusual circumstances misconduct shall not be regarded as minor if any of the following conditions exist:….(E) the misconduct includes dishonesty, misrepresentation, deceit, or fraud on the part of the respondent…as there are no unusual circumstances present that explain or excuse Respondent’s dishonest conduct, we disapprove the referee’s finding that Respondent’s misconduct was minor misconduct.”

After discussing the referee’s findings of fact and rule violations and the case law, the opinion imposed a 91 day suspension, one (1) of probation which will begin upon when the lawyer is reinstated to practice and as a condition, the lawyer will be required to complete at least five hours of continuing legal education by attending The Florida Bar’s Ethics School and a Florida Bar professionalism course.

Bottom line:  As I have stated many times in previous Ethics Alerts and seminars, a 91 day suspension is “rehabilitative”; therefore, the lawyer will be required to file a Petition for Reinstatement and prove rehabilitation before being reinstated and this process will take far longer than the 91 day suspension.  This opinion makes it abundantly clear that the Florida Supreme Court has taken the position that it will not tolerate “severely dishonest conduct” by lawyers and will also not hesitate to impose rehabilitative suspensions (or worse) on those who engage in such conduct, notwithstanding a referee’s recommendation that the lawyer receive an admonishment for minor misconduct.

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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The Florida Bar finds no probable cause to proceed on trust account allegations against KEL law firm partners related to money scam

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent media reports that The Florida Bar no probable cause to proceed against partners in Orlando’s KEL law firm related to Bar rule violations related to an international money scam in which the law firm was defrauded of more than $285,000.00.

The Florida Bar began its investigation after several Bar complaints were filed alleging that the KEL law firm’s three principal partners mismanaged trust account funds when the firm unwittingly became involved in the money scam.  In late February 2012, a Bar grievance committee found that the lawyers in KEL did not violate any Bar disciplinary rules when the law firm was scammed into depositing a fraudulent bank check in the amount of $285,000.00 into its trust account and wiring the funds to a Japanese bank account before the funds had cleared the bank.

As I have stated on numerous occasions and in previous trust account seminars, Florida Bar trust account rules require lawyers to wait for trust funds to clear all banks before the funds are disbursed; however, there are exceptions and the Bar’s Notice of No Probable Cause found that the lawyers had “reasonable and prudent grounds to believe” the check was legitimate (under Florida Bar Rule 5-1.1(j)(3)), which is one of these exceptions.

According to the media reports, the Notice also stated that KEL fully cooperated with a federal investigation of the incident, that the funds have since been “retrieved.”  Federal authorities had previously filed a forfeiture suit seeking to recover the money from JPMorgan Chase, an affiliate of Japan’s Shinsei Bank, where the money was deposited.

Bottom line:  This is a very real example of the substantial risks to lawyers related to these types of international/internet money scams and should be a stark lesson to all lawyers.  Please don’t be fooled and don’t let this happen to you…

…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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New Mexico lawyer videotaped breaking into client’s ex-husband’s home and asking client for a hug is convicted of theft and trespassing

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent media reports about a New Mexico divorce lawyer who helped his female client break into her ex-husband’s home, was videotaped asking the client for a hug during the crime, and later pleaded guilty to misdemeanor larceny and trespassing.  He was recently sentenced to serve 334 days of supervised probation, complete 100 hours of community service and pay $5,000.00 in restitution and $2,500.00 in fines.

According to the reports, the criminal charges arose when the Alamogordo New Mexico Police Department responded to a 911 call at the home of Anthony Stonecipher on Oct. 28, 2011.  Mr. Stonecipher claimed that his ex-wife and the lawyer were attempting to break into his home but by the time the police arrived, the lawyer and his client were gone; however, their actions were captured on surveillance video installed by the ex-husband.

The videotape shows the lawyer initially trying to get in the home by kicking in the front door.  Mr. Stonecipher and a roommate then leave through a back door and an outside surveillance video then shows the lawyer confronting Mr. Stonecipher and attacking his vehicle, causing damage to the driver’s side window.  Mr. Stonecipher can be heard on the videotape warning the lawyer about the cameras and the lawyer responds by mocking him.

After Mr. Stonecipher left the scene, the video shows the lawyer forcibly breaking in through a back door and he and his client then entering the residence.  At one point on the videotape, the lawyer can be seen approaching his client and saying: “I need a hug … I need some relaxation.”  After the hug, the lawyer and the client open the front door and the lawyer tells his office staff to gather items and “act quickly” because they did not have much time.  The video also shows the lawyer removing and destroying several “No Trespassing” signs posted throughout the residence and the individuals take documents, truckloads of furniture, and the family pet.  The lawyer apparently had no legal authority to enter the residence and remove any property and he pled guilty to the crimes of misdemeanor larceny and trespassing.

According to the media reports, at the sentencing hearing held on March 13, 2012, the lawyer apparently stated he did not have time to get an Order from the Court because the incident occurred late on a Friday afternoon.  He also apparently stated that “if Stonecipher would have just opened the door, none of this would have happened.”

The prosecutor disagreed and stated “(t)his was a home invasion disguised as a legal process.  (The lawyer) gathered his crew of employees and his client, pulled up to the house in droves and demanded entry.  When he couldn’t get in, he intimidated the victim into leaving his own property and then forced his way into the house where he and his posse cleaned this victim out. It was a planned attack against a person and his property, without any legal backing at all, and (the lawyer) needs to be punished.”  The prosecutor also argued that lawyer is a habitual criminal since he has two prior felony drug convictions.  According to the reports, the lawyer also was “temporarily disbarred” for possession of cocaine in 2002.

Bottom line:  This is quite a bizarre story and it is very likely that the New Mexico Bar will be investigating this lawyer, if it is not investigating already.  Hopefully, I don’t need to ask or tell anyone not to do this…

…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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Ohio lawyer receives 12 month suspension for improper ex parte communications and dishonesty in divorce cases

Hello welcome to this JACPA Ethics Alert blog which will discuss the recent Ohio Supreme Court opinion which suspended an Ohio lawyer for 12 months for engaging in improper ex parte communications with judges and engaging in “a course of conduct that was replete with dishonest, deceptive, and disrespectful acts”.  The opinion is: Ohio Disciplinary Counsel v. Stafford, 2012-Ohio-909 (March 8, 2012) .

In a unanimous opinion, the Ohio Supreme Court suspended an Ohio divorce lawyer for 12 months for multiple violations of Ohio’s Rules of Professional Conduct in two separate cases during 2007, including intentionally deceiving the Cuyahoga County Domestic Relations Court when he filed an ex parte motion in 2007 to amend his client’s complaint in a divorce case.

According to the opinion, the motion stated that the sole purpose for the amendment was to include additional parties; however, the lawyer used the amended pleading to surreptitiously insert an answer to a counterclaim to address a prenuptial agreement which had been filed by the opposing party two years earlier and to which the lawyer had failed to file a timely response.

The opinion stated that “(the lawyer’s) conduct in seeking an ex parte order cannot be justified by fear of concealment or dissipations of assets. The board correctly concluded that Stafford unjustifiably alleged the existence of the prenuptial argument in the amended complaint without any mention of the issue in his motions for leave to amend the pleadings. By insisting that he slipped the prenuptial-agreement argument in under the cover of a legitimate issue instead of a flimsy façade, Stafford largely distracts from the core problem.  He was not honest with the court when he amended the complaint to add a defense that he might have otherwise waived.  Further, we reject Stafford’s contention that the ultimate settling of the case somehow legitimized his unscrupulous procedural tactics.”

The opinion also agreed with the Disciplinary Board’s findings in a second count that the lawyer had directed a client and a subordinate lawyer in his firm to file false sworn affidavits and filed a memorandum in the domestic relations court that recklessly accused a judge of intimidation and abuse of his judicial office after a motion was filed which sought to disqualify the lawyer from representing a client in a pending case based on an alleged conflict of interest.  The Disciplinary Board concluded that the lawyer had made “deliberate misrepresentations to the domestic relations court…with the intent to deceive the court.”

The opinion adopted the Disciplinary Board’s conclusions and found that the lawyer’s actions violated, among others, the state disciplinary rules that prohibit an attorney from engaging in conduct involving fraud, deceit, dishonesty or misrepresentation; failing to disclose known material facts to a court in an ex parte proceeding, and making a statement that impugns the integrity of a judicial officer that the attorney knows to be false or with reckless disregard as to its truth or falsity.

“(The lawyer’s) six violations of the Rules of Professional Conduct stemmed from a course of conduct that was replete with dishonest, deceptive, and disrespectful acts. When an attorney engages in such conduct and violates Prof.Cond.R. 8.4(c), ‘the attorney will be actually suspended from the practice of law for an appropriate period of time. A lawyer who engages in a material misrepresentation to a court … violates, at a minimum, the lawyer’s oath of office that he or she will not “knowingly employ or countenance any … deception, falsehood, or fraud.”  “… Such conduct strikes at the very core of a lawyer’s relationship with the court and with the client. Respect for our profession is diminished with every deceitful act of a lawyer.'”

A concurring opinion responded to an assertion by counsel for the lawyer during oral argument claiming that ex parte communications were a “common practice” in proceedings before the Cuyahoga County Domestic Relations Court.  The concurring opinion stated that “(p)articipating in unauthorized ex parte communications is prohibited conduct subject to sanction.  Our adversarial system of justice is dependent upon attorneys who respect, understand, and adhere to the Ohio Rules of Professional Conduct and impartial jurists who strictly adhere to the Code of Judicial Conduct and who resist ex parte engagements.  Counsel and judges are reminded of their obligation to adhere to the Ohio Rules of Professional Conduct and the Ohio Code of Judicial Conduct in this regard and to avoid the appearance of impropriety.

Bottom line:  This opinion is surprising for a few reasons; including the somewhat short length of the suspension for what appear to be extremely serious Bar Rule violations and the statements by the lawyer’s counsel at oral argument that this is “common practice” in courts in this jurisdiction.

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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Recent federal Second Circuit Opinion strikes part of New York Bar rule requiring certified lawyers to make disclosures as unconstitutional

Hello welcome to this JACPA Ethics Alert blog which will discuss the recent federal Second Circuit Court of Appeals opinion which found that parts of a New York Bar rule requiring lawyers who claim to be certified specialists to make certain disclosure statements were violations of the free speech provisions of the First Amendment of the U.S. Constitution. The opinion is: Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District, 10-1587-cv (March 5, 2012) and the opinion is attached.

New York Bar Rule 7.4 permitted a lawyer who is certified as a specialist to state that claim in an advertisement if the certifying organization is identified and the following statements are “prominently made” in the advertisement: “(1) The (name of the private certifying organization) is not affiliated with any governmental authority (,) (2) Certification is not a requirement for the practice of law in the State of New York and, (3) (that the certification) does not necessarily indicate greater competence than other attorneys experience in this field of law.”

The New York Bar committee opened an investigation in 1996 regarding the lawyer’s reference to himself as a “board certified civil trial specialist.”  The lawyer subsequently agreed to include the name of the board that certified him (National Board of Trial Advocacy) on both his letterhead and in future telephone directory advertisements and was not disciplined.

In 1999, the lawyer placed advertisements on two billboards which had the disclaimer; however, the Bar committee sent him correspondence questioning whether the disclaimer on the bulletin board was large enough to meet the “prominently made” requirement of NY Rule 7.4.  That investigation was ultimately closed and the lawyer was not disciplined; however, in May 2000, the Bar committee began another investigation into the lack of disclaimer on the lawyer’s letterhead.  The lawyer argued that he did not need the disclaimer on the letterhead because the letterhead only said that he was board certified and did not state he was a “specialist.”  The Bar committee’s position was that the use of the word “certified” implied specialization.

The lawyer filed a lawsuit in federal court in 2001 seeking a declaration that the predecessor to Rule 7.4, DR 2-105 (C)(1) was not enforceable.  The District Judge granted summary judgment finding that New York had a substantial interest in protecting the public from potentially misleading attorney advertisements which was furthered by the rule and the rule was narrowly drawn and citing the U.S. Supreme Court decisions in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) and Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990) and.  The judge also rejected the claim that the rule was vague on its face but found there were still issues on whether it was vague as applied.  A bench trial was then held, the federal Magistrate also rejected the lawyer’s claims, and the lawyer appealed to the federal Second Circuit Court of Appeals.

The Second Circuit opinion reversed the federal Western District Judge’s grant of summary judgment to the grievance committee and the decision of a federal Magistrate who rejected the lawyer’s void-for-vagueness claim after a 2010 trial.

The opinion first states that there is “no constitutional infirmity” in the first required disclosure that attorneys who claim to be specialists disclose that the certifying organization is not affiliated with any governmental authority.

With regard to the second required disclosure that certification not a requirement for the practice of law, the NY Bar committee argued that the in the State of New York was necessary since, without the disclosure, the public would believe that a lawyer is required to be certified to practice law “thereby leading them to think that they must limit their choice to state-licensed lawyers to those who have been certified as specialists.”  The opinion states that this “possible belief” is “sufficiently strained to require some basis in the record to support it” and there was none in the appellate record.

The opinion found that the third required disclosure that certification “‘does not necessarily indicate greater competence than other attorneys experienced in the field of law’-is even more problematic.”  Further, some members of the public “might easily think that a certified attorney has no greater qualifications than other attorneys with some (unspecified) degree of experience in the designated area of practice,” when, in fact, the National Board of Trial Advocacy only certifies lawyers who have been lead counsel in at least five trials, who have been an active participant in at least 100 contested matters involving the taking of testimony, who have passed an exam and had 45 hours of continuing legal education and who devote at least 30 percent of their practice to the specialized field.

“These qualifications may reasonably be considered by the certifying body to provide some assurance of ‘competence’ greater than that of lawyers meeting only the criterion of having some experience in the field, and a contrary assertion has a clear potential to mislead,” he said. “Such a requirement does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.”  Based on this rationale, the opinion found this disclosure requirement to be unconstitutional.

Although he was not disciplined for violation of the NY Bar Rule, the lawyer also argued that his disclaimer on the first billboard was “prominently made” because the lettering was six inches high, one inch higher that the health warnings on cigarette billboards.  The opinion found that “(a)lthough (the lawyer) was never in fact disciplined for violation of the rule, the mere existence of repeated and extended investigations of his conduct created a cloud on his good standing as a member of the bar that was a meaningful adverse consequence to him, and that would clearly chill legitimate advertising by similarly situated lawyers, based on a rule whose contours that a lawyer of ordinary skill and intelligence could not reasonably discern.”  The opinion found that it could not conclude that a lawyer of “average intelligence” could anticipate that six-inch high disclaimers were not “prominently made” and therefore this requirement was unconstitutionally vague as applied to the lawyer.

Bottom line:  This federal appellate court opinion addresses only New York Bar Rules; however, it is interesting that the opinion strikes down as unconstitutional mandatory disclosure rules related to lawyer certification and addresses the extent to which the Bar can require lawyer speech (i.e. mandatory disclosures), instead of the extent how far lawyer speech can be restricted.  It will be interesting to see how this plays out in Florida and other states which have Bar rules requiring mandatory disclosures.

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

Recent NY Ethics Opinion concludes that if one joint client revokes consent a lawyer is not always required to drop the other client(s)

Hello welcome to this JACPA Ethics Alert blog which will discuss the recent New York opinion which concludes that when one joint client revokes consent to conflict, the representation of other joint client(s) does not always have to be terminated.  The opinion is: New York State Bar Ass’n Comm. on Professional Ethics, Op. 903, January 30, 2012) and the opinion is attached.

According to the hypothetical in the opinion, the lawyer was asked to represent two defendants in the same lawsuit and each client gave informed consent in writing for the lawyer to represent them and agreed to waive any future conflict.  Two years later, one client claimed that its interests differed significantly from those of the other client and revoked the consent to the simultaneous representation. The lawyer asked for an opinion as to whether he could continue representing the other client without the revoking client’s consent.

The opinion initially states that when undertaking a joint representation, a lawyer should obtain an advance agreement with the clients regarding what will happen if one of them revokes their waiver and consent.  This advance agreement would not guarantee that the lawyer could continue to represent the remaining client but would assist in the analysis; however, even if there is such an agreement, the propriety of the lawyer’s continued representation of the other client would depend on the particular circumstances, although withdrawal may be the most likely outcome.

The opinion notes that “an advance agreement can avoid many uncertainties surrounding a client’s revocation of consent to a multiple representation” and could specify whether a lawyer may continue to represent either client after consent is revoked, and whether the lawyer may use or reveal confidential information obtained from a client who has revoked the consent during the representation.

Since the joint clients’ waiver and consent in this hypothetical did not have an agreement regarding the effect of a withdrawal of consent, the opinion reviewed and analyzed the New York Rules of Professional Conduct and identified a variety of factors and rules which should be reviewed and analyzed.  The rules which the committee analyzed are as follows:

New York Bar Rule 1.7(a)(1) prohibits a lawyer from representing a client if a reasonable lawyer would conclude that the representation “will involve the lawyer in representing differing interests”, unless the clients give informed consent, confirmed in writing, and the other conditions in NY Rule 1.7(b) (similar to Florida Bar Rule 4-1.7(b)) are met.

            Florida Bar Rule 4-1.7(a) has different language and states that “a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

The opinion refers to certain comments to NY Rule 1.7 regarding conflicts which arise during joint representation which state that if the lawyer has not obtained the client’s informed consent under paragraph (b), he or she must ordinarily withdraw.  The comment also states that whether the lawyer can continue to represent any of the clients depends on the lawyer’s ability to comply with duties owed to the former client and to adequately represent the remaining client(s) given the duties to the former client.

Another comment to NY Rule 1.7 states that when unforeseeable developments create a conflict during a representation, the lawyer may have the option, depending on the circumstances, to withdraw from representing one of the clients, but the lawyer must protect the confidences of the client who has become a former client under NY Rule 1.9(c) (former client confidences rule similar to Florida Bar Rule 4-1.9(c), and must seek court approval where necessary and minimize harm to the clients as required by NY Rule 1.16 (withdrawal from representation rule similar to Florida Bar Rule 4-1.16).

The comment to the NY Rule also states that whether a client’s revocation of consent to a conflict precludes the lawyer from representing other clients depends on the circumstances, including: 1) the nature of the conflict; 2) whether the client revoked consent because of a material change in circumstances; 3) the reasonable expectations of the other client; and 4) whether material detriment to the other client or the lawyer would result.  The opinion states that the issue of whether the lawyer can continue to represent the other client when one client revokes consent depends upon the four factors set forth in the comment.  The comment also states that: “(o)rdinarily, absent the informed consent of all clients, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.  See (NY) Rule 1.9(a).”

NY Rule 1.9(a) (similar to Florida Bar Rule 4-1.9(a)) prohibits a lawyer from representing a client in a matter if the client’s interests are materially adverse to those of a former client in the same matter, unless the former client gives informed consent, confirmed in writing. Ordinarily, the committee explained, this rule will require a lawyer to drop both joint clients when a conflict between them arises, because the lawyer will be forbidden to oppose either client in the same matter.

The opinion also refers to the commentary to Section 122 of the Restatement (Third) of the Law Governing Lawyers (2000), which states that revocation of consent does not necessarily prevent the lawyer from continuing to represent the other joint client and whether the lawyer can continue the representation depends on whether the client was justified in revoking the consent and whether material detriment to the other client would result.

The opinion concludes that the facts provided by the lawyer were not sufficient to evaluate all of those factors; however, the opinion provides the following advice:  “(w)hen a lawyer jointly represents two co-defendants pursuant to a validly obtained consent to the dual representation and to any future conflicts that might arise between the joint clients, and one of the clients later revokes consent, whether the lawyer may continue to represent the non-revoking client depends upon the circumstances, unless an advance agreement specifies what happens upon revocation of consent.”

Bottom line:  As I have said many times in the past, conflicts of interest, informed consent, and waivers related to multiple clients can be complicated and require careful analysis of all of the relevant facts before the lawyer should even consider representing multiple clients.  This NY opinion states that a lawyer is not always required to terminate the representation of a client when the other client revokes a waiver; however, it would prudent to do so on most occasions to avoid future issues, ethical or otherwise.  In addition, it may be helpful to ask the multiple clients to agree that the lawyer will be permitted to continue the representation if one client revokes the waiver; however, if the conflict is not waivable or if the revoking client is disgruntled, it may be more trouble than it is worth to stay in the representation.

As a reminder, Bar Ethics Opinions (particularly out of state opinions) are not binding; however, they can be very useful for guidance and mitigation, if the opinion is followed in good faith and issues later arise.

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

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