Monthly Archives: April 2012

Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial

Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial.

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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 Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial

Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial.

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Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent media reports that a Florida Bar referee has recommended that a former Florida criminal prosecutor who sent hundreds of texts and made calls to a presiding judge during a capital murder trial should be found guilty and suspended from practice for one year.

According to the media reports, Fifteenth Circuit Court Judge Sheree Davis Cunningham, who was appointed by the Florida Supreme Court as a referee, found that former homicide prosecutor, Howard Scheinberg, sent the texts and made the telephone calls to the judge during the 2007 murder trial, that the communications should have been disclosed to defense counsel for the defendant, and that the lawyer’s failure to disclose them was prejudicial to the administration of justice.

The lawyer is now in private practice in Plantation after serving for two decades as a state prosecutor.  He resigned after the communications between him and former Seventeenth Circuit Court (Broward County) Judge, Ana Gardiner, were revealed.  According to the Sun Sentinel, both the lawyer and the former judge have maintained that the approximately 1,400 texts and calls that they made to each other during the trial had nothing to do with the case.

The defendant was convicted and sentenced to death after the initial trial; however, after the communications were revealed, he was granted a new trial.  He was convicted in the subsequent trial and sentenced to life in prison.

The report of referee is not final and will be sent to the Florida Supreme Court for review along with the record.  Both the lawyer and The Florida Bar have the right to file a Petition for Review of the referee’s findings and recommendations with the Court.

Judge Gardiner resigned from the bench after the communications were revealed and is now in private practice in Broward County.  She avoided a Judicial Qualifications Commission (JQC) ethics complaint by resigning as a judge; however, she is currently facing a Bar complaint alleging that the communications violated Florida Bar Rules and also that she misled the JQC by claiming that her communications with the prosecutor were less extensive than they actually were.  Also according to the media reports, a hearing on that matter is scheduled for May 2012.

Bottom line:  If true, these allegations are troubling on multiple levels and it also illustrates that a judge will not necessarily be able to escape charges of Bar disciplinary rule violations by resigning from the bench.

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.

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

Indiana Bar Ethics Opinion warns that lawyer participation in group coupon programs as a marketing tool may be unethical

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent Indiana State Bar Association Ethics Opinion which states that a lawyers’ use of group coupon or daily deal programs to obtain new clients is “fraught with peril” and most likely violates Indiana Bar Rules.  The opinion is Indiana State Bar Association Legal Ethics Comm., Op. 1, 2012-JDH-1.  A copy of the opinion is attached.

The opinion addresses lawyers’ participation in the escalating industry of marketing through group coupon or daily deal arrangements (such as Groupon) and notes that in these arrangements the group coupon company and the participating business establish a discounted price for the item or service to be sold and then share that price.  The company charges the customers for the coupon only after a certain number of people respond to the offer and also, some customers who purchase coupons do not redeem them within the time period stated in the offer.

Indiana Bar Rule 2.1 requires a lawyer to exercise independent professional judgment in representing a client and the opinion notes that this standard is difficult (if not impossible) to meet if the representation of a client is determined by the potential client’s decision to purchase a coupon without any consultation.

The opinion also notes that Indiana’s guidelines on use of non-lawyer assistants provide that the creation of an attorney-client relationship is the nontransferable duty of the lawyer and a lawyer may not delegate to a non-lawyer assistant the responsibility for establishing an attorney-client relationship, which would occur of the company offers the coupons.

Indiana Bar Rule 5.4 also prohibits fee-sharing with non-lawyers in most circumstances, and Comment (4) to Indiana Bar Rule 7.2 states that lawyers are not permitted to pay others “for channeling professional work” (i.e. referrals).  By creating buying groups, the companies offering group coupon arrangements “are being paid to channel buyers of legal work to the specific lawyer, in violation of the advertising and fee-sharing rules.”

In addition, under Indiana Bar Rule 1.7, a lawyer is required to insure there are no conflicts of interest or any conflicts are resolved before undertaking the representation and, if any conflicts are not resolved before the representation begins, the lawyer is required to terminate the representation and return any fees paid.

According to the opinion, the coupon users might qualify as prospective clients under Indiana Bar Rule 1.18 if they deposit money with a group coupon company for the purpose of forming an attorney-client relationship and, if that occurred, lawyers would be required to meet the rule’s obligations regarding confidentiality and avoiding conflicts of interest.

The opinion found it “troubling” that group coupon companies hold funds paid by clients until the funds are disbursed to the lawyer and that some companies pay out the funds over time in incremental amounts.  This arrangement would violate Indiana Bar Rule 1.15(c), which requires that advance fees must be held in trust and withdrawn only when earned.  In addition, the client’s funds are most likely not segregated and complete trust records are not maintained as required by Indiana Bar Rule 1.15(a). The provision in some of the group coupon contracts that the funds remain the property of the company also violates Indiana Bar Rule 1.15.

The opinion also expressed concern that if consumers who purchase coupons are not ultimately represented by the lawyer, the participating lawyer would not be able to comply with Indiana Bar Rule 1.16(a), which requires a lawyer to refund any advance fees which have not been earned.  In addition,  the lawyer would not be able to timely identify each individual who bought a coupon but did not become clients and refund the entire amount paid to the client, including the company’s share, which is required by the Indiana Bar Rules.

Although Indiana Bar Rule 7.2(b)(1) allows a lawyer to pay the reasonable costs of advertisements, the group coupons used by some companies violate that rule since the company keeps as much as 50% of the amount collected, instead of allocating an amount related to the reasonable costs of the advertising.

The opinion suggests that online coupon advertising arrangements may be permissible under certain limited circumstances, for example, if the lawyer offers a coupon for legal services at a specified rate, with the client to pay the lawyer directly.  If the client paid a nominal fee for this coupon related to the reasonable costs of the marketing, this arrangement would not violate the Indiana Bar Rules.

According to the opinion, a few states have examined this issue and “(t)he reports are that they have considered different aspects of the program as important and have disagreed as to the propriety of such programs.”  The opinion refers to ethics opinions from Missouri, New York, North Carolina, and South Carolina.

The opinion concluded that “it is likely not appropriate for a lawyer licensed in Indiana to advertise through a group coupon program” similar to those discussed in the opinion and lawyers considering such an arrangement should do “rigorous research before entering into such an arrangement” and may even want to hire private counsel to “guide the lawyer through the dangers inherent in such marketing, including discussion of alternative courses of action that may comply with the rules.”

Bottom line: The Florida Bar’s Professional Ethics Committee has not issued an ethics opinion on this issue; however, this Indiana ethics opinion makes it very clear that, at least in Indiana, lawyers must be aware that unless the group coupon program avoids the minefields set out in the opinion, a lawyer who participates would potentially violate the Indiana Bar Rules and be subject to disciplinary consequences.

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 Judicial Qualifications Commission, Florida Lawyer Ethics and Professionalism, Florida lawyer trust accounts, joe corsmeier, Lawyer advertising, Lawyer discipline, Lawyer escrow accounts, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sharing fees with non-lawyers

New York District Court Judge finds that law firm had a duty to preserve e-mails from former client and failure to preserve may result in adverse spoliation instruction

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent New York U.S. District Court Judge’s opinion which found that the former lawyers for a mortgage company (AmTrust) had an ethical obligation and legal duty to preserve client e-mails relating to their prior representation and the failure to preserve “with a culpable mind” could result in an adverse inference instruction that evidence was destroyed in the ongoing litigation.  The case is: FDIC v. Malik, 2012 U.S. Dist. LEXIS 41178 (E.D.N.Y. Mar. 26, 2012).

The N.Y. District Judge found that the former lawyers had an ethical obligation and a legal duty to preserve e-mails relating to their prior representation and the failure to do this “with a culpable state of mind” could result in an adverse spoliation instruction since the law firm had control over the documents and the documents were relevant to the other party’s claim or defense.  With regard to the “duty to preserve” the opinion stated that “(a) regulation requiring retention of certain documents can establish the preservation obligation necessary for an adverse inference instruction where the party seeking the instruction is ‘a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.'”

The opinion stated in a footnote that “(a) regulation requiring retention of certain documents can establish the preservation obligation necessary for an adverse inference instruction where the party seeking the instruction is “a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.” Byrnie, 243 F.3d at 109.  Relying on Byrnie, plaintiff argues that the Malik defendants had a duty to preserve arising from professional responsibility rules and attorney ethics opinions. Pl.’s Mem. in Support of Mot. for Sanctions at 13 (citing Assoc. of Bar of City of N.Y. Comm. On Prof. and Judicial Ethics, Formal Opinion 2008-1, A Lawyer’s Ethical Obligations to Retain and Provide a Client with Electronic Documents (July 2008)).”

“The Malik defendants have not responded to that argument and have made no attempt to explain why those rules and ethics opinions, which require lawyers to preserve electronic documents relating to a representation and seek to protect clients such as AmTrust, do not trigger an actionable duty to preserve under Byrnie.  Therefore, I conclude that the Malik defendants had a duty to preserve in 2008 when they represented AmTrust in the loan transactions at issue. I also note that the Malik defendants have not argued that this retention obligation excludes the types of emails at issue in the instant motion.”

The judge scheduled an evidentiary hearing to determine whether the e-mails were destroyed with a “culpable state of mind” which would result on the adverse spoliation inference and to rule on the request for sanctions.

Bottom line:  This is an example of how the ethical duties and obligations of lawyers, in this case the judge’s finding that the New York ethics rules required that the lawyer preserve client confidential electronic documents and information, may intersect and have a significant impact in other forums, including this litigation.  In addition, this case involves the preservation of electronic information, i.e. e-mails which are not always preserved in hard copy format and may be deleted or otherwise unintentionally lost.

As I have said many times in the past, Florida lawyers should preserve and maintain all client confidential documents and information, including those in electronic form, for at least 7 years, which is one year more than the period of time required by the Florida Bar rules to preserve client trust account documents and information.

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, Lawyer Ethics and Professionalism

Florida Supreme Court opinion makes revisions to Bar Rules related to trust accounts and reporting misconduct in mediation

Hello and welcome to this JACPA Ethics Alert blog which will discuss the very recent opinion of the Supreme Court of Florida adopting revisions to, inter alia, Bar Rule 5-1.2, Trust Account Records and Procedures and Rule 4-8.3(c) Reporting Professional Misconduct.  The amendments will become effective 7/1/12.

The Bar proposed various revisions to Rule 5-1.2 (Trust Accounting Records and Procedures) and, according to the opinion, the most controversial was proposed new subdivision (d) (Signing Trust Account Checks), which would have required that a lawyer sign every trust account check with his or her actual signature and would have prohibited lawyers from using a signature stamp or signing a trust account check in blank.

The Florida Bar and the Supreme Court received comments which stated that the proposed rule would impose a significant and disproportionate burden on lawyers who practice solo or in very small firms.  The Court agreed with these comments, declined to adopt the amendment, and referred the issue to the Bar for additional study.  The opinion stated that, “(i)n particular, the Bar should revise its proposal so as to accommodate the issues raised by solo practitioners and lawyers in small firms.”

The opinion also made important revisions to Rule 4-8.3 (Reporting Professional Misconduct) which clarify the reporting requirements in the context of mediation.  Rule 4-8.3(c) was revised to clarify that the rule does not require disclosure of confidential information “gained by the lawyer while serving as a mediator or mediation participant if the information is privileged or confidential under applicable law”.

                The Comment to Rule 4-8.3 was also revised to state that: “(g)enerally, Florida statutes provide that information gained through a “mediation communication” is privileged and confidential, including information which discloses professional misconduct occurring outside the mediation. However, professional misconduct occurring during the mediation is not privileged or confidential under Florida Statutes.”

These revisions clarify that professional misconduct occurring during mediation is not privileged of confidential under Florida Statutes; however, “information which discloses professional misconduct outside of mediation is privileged and confidential” under Florida Statutes.

Florida lawyers who become aware during mediation of professional misconduct outside of the mediation must decide whether the lawyer “has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”  If so, the lawyer may be required to report the misconduct.

Bottom line:  According to the opinion, solos and lawyers in “very small” firms can apparently still sign trust checks in blank and have trust account checks stamped with their signature (for now), although this is certainly not the recommended procedure.  In addition, revised Rule 4-8.3 and the Comment clarify that professional misconduct by a lawyer during mediation is not privileged or confidential under Florida Statutes; however, professional misconduct outside of the mediation is privileged and confidential under Florida Statutes.  Lawyers who learn of alleged misconduct during mediation must decide whether such conduct must be reported under Rule 4-8.3(a) which states as follows:

4-8.3(a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.

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, Florida lawyer trust accounts, joe corsmeier, Lawyer discipline, Lawyer escrow accounts, Lawyer Ethics and Professionalism, Lawyer trust accounts