Monthly Archives: May 2012

The Florida Bar’s Standing Advertising Committee decides multiple appeals from Bar staff opinions interpreting lawyer advertising rules

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent decisions of the Bar’s Standing Advertising Committee on appeals from staff opinions on lawyer advertising.  According to the Bar’s website, the Standing Committee is “charged with the responsibility of advising members of The Florida Bar on permissible advertising and solicitation practices. This responsibility is accomplished through the issuance of written advisory opinions, the evaluation of advertisements required to be filed with the committee, and the development of a handbook on advertising for the guidance of and dissemination to members of The Florida Bar.  In addition, the committee is empowered to recommend to the board of governors such amendments to the Rules of Professional Conduct as the committee believes are appropriate.”  Although not binding, the committee’s decisions are used by The Florida Bar in examining advertising issues and prosecuting Bar advertising Rule violations.

With regard to lawyer referral services, the committee decided that a lawyer referral service fee arrangement with participating lawyers, in which the lawyers pay the service a set amount for each case the lawyer accepts from the referral service and bills the fee back to the client, is a division or sharing of fees with a non-lawyer in violation of Bar Rules Rule 4-7.10(a)(2) and 4-5.4(a).  Rule 4-7.10(a)(2) provides that a lawyer may not accept referrals from a lawyer referral service unless the service receives no fee or charge that constitutes a division or sharing of fees.

With regard to characterization of the quality of legal services, the committee decided that the italicized language describes or characterizes the quality of the services being offered and therefore is prohibited by Rule 4-7.2(c)(2):  “(Lawyer) holds an AV® Preeminent rating from the Martindale Hubbell Peer Review, which is the highest level attainable by an attorney and represents the highest level of skill and integrity.  The committee determined that the language would comply if it was revised to use the verbatim statement Martindale Hubbell uses to describe its rating, and clearly indicate that the statement is attributable to Martindale Hubbell, such as “according to Martindale-Hubbell, the rating is. . . .”

The committee also voted to reverse a staff opinion on a newspaper advertisement and decided that the use of “top-tier” in the description of the U.S. News-Best Lawyers ranking does not characterize the quality of the services being offered because the firm is listed in U.S. News-Best Lawyers in Tier 1 but that use of the word “excellence” does characterize the quality of legal services in violation of Rule 4-7.2(c)(2).  The description was as follows:  “So when they asked for top-tier legal services, we responded – which is why in the latest U.S. News-Best Lawyers ® “Best Law Firms” rankings, the Orlando office was recognized for excellence in Administrative/Regulatory Law, Corporate Law, Environmental Law, General Commercial Litigation, Government Relations Practice, Land Use & Zoning Law, Real Estate Law, and Tax Law.”

With regard to promising results, the committee decided that the statement “Justice. Compensation. Case Closed.” appearing in an advertisement for personal injury matters promises results in violation of Rule 4-7.2(c)(1)(G), which prohibits any statement in lawyer advertising that promises results the lawyer can achieve.  The committee also decided that the language, “Ten thousand dollars, one hundred thousand dollars, a million dollars” also promises results in violation of Rule 4-7.2(c)(1)(G) and is misleading in violation of Rule 4-7.2(c)(1).

The committee decided that the following italicized language does not violate Rule 4-7.2(c)(1)(G) because it does not promise results:  “Now it’s time for you to take the next step and help secure your legacy and family’s future.  Through the Biz-Growth Program you can hire (law firm) on commission to assist you in obtaining contracts for your organization.

With regard to misleading statements, the committee decided that it is misleading for an owner of a lawyer referral service, who is a former professional football player, to use the title “Coach” in his advertisements because the title is misleading in violation of Rule 4-7.2(c)(1) because he is not currently a coach.  Rule 4-7.2(c)(1)(A) provides that “A lawyer shall not make or permit to be made a false, misleading, deceptive communication about the lawyer or the lawyer’s services. A communication violates this rule if it: (A) contains a material misrepresentation of fact or law”.

With regard to use of celebrities, the committee reversed the Bar staff and determined that the name and image of the owner of the lawyer referral service, who is a former professional football player, may be included in a television advertisement for the referral service.  Under Rule 4-7.5(b)(1)(B), lawyers are prohibited from using a spokesperson with a “voice or image that is recognizable to the public.”

With regard to the advertisement filing requirement, the committee decided that an unsolicited letter that offers a free safety magazine to recipients who call or e-mail the law firm is an attorney advertisement that must be filed pursuant to Rule 4-7.7 and must comply with the direct mail requirements of Rule 4-7.4(b).

Bottom line:  If you advertise (or are interested in advertising), these decisions affect what may be placed in the advertisement.

…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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

The Florida Bar’s lawyer referral committee votes to recommend that lawyers be banned from participating in combined lawyer and medical (non-lawyer) referral services

Hello and welcome to this JACPA Ethics Alert which will discuss the May 4, 2012 meeting of the Special Committee on Lawyer Referral Services wherein the committee voted, inter alia, to recommend that the Bar rules be revised to prohibit lawyers from participating in combined lawyer/medical (or other non-legal) referral services.

As reported in the June 1, 2012 issue of The Florida Bar News, the special committee voted unanimously to recommend that lawyers be prohibited by rule from participating in combined lawyer/medical (or other non-legal) referral services.  The committee recommended the prohibition after receiving an opinion from outside Bar counsel Barry Richard indicating that it would not violate the U.S. Constitution or restraint of trade laws to impose such a prohibition.  The committee also voted to retain the requirement that lawyer referral services register with the Bar, but to include restrictions that would prohibit referral services to claim such registration means they are “Bar approved”.

Some of the committee members discussed concerns (which had been discussed at previous meetings) about potential conflicts when a lawyer represents a client who has also been referred to medical treatment at a facility in which the referral service has a financial interest.  This concern arises from the fact that, since lawyers who settle such a personal injury case are also expected to negotiate medical liens and bills incurred by their clients, these charges would potentially be owed to the entity affiliated with the lawyer referral service which sent the lawyer the case and from which the lawyer would presumably hope to obtain more referrals.

Another issue/concern discussed by the committee was that, since the committee is recommending that lawyers be required to report referral services with which they are affiliated, the requirement that the referral services to register may be redundant; however, since some services apparently use their registration with the Bar to claim that they are “Bar approved”, some committee members said it would be harder to keep track of the services and their compliance with Bar rules (including review of their advertisements) without the registration requirement.

The committee considered and approved (with 2 dissents) a motion to recommend that the referral services continue to be required to register with the Bar and pay a fee with the registration, continue to be required to disclose the names of lawyers participating in the service, continue to be required to comply with all Bar rules, be prohibited from using the fact that they are registered with the Bar in any advertising, and be removed from the list of registered referral services if a complaint about their activities has been found to be valid.

The committee also discussed, but did not vote on, other issues and topics, including lawyer referral service fees and a potential joint legal-medical committee to look at referral services and the relationships between doctors and lawyers during the process of referring clients and patients to each other.

The two recommendations approved at the May 2012 committee meeting will be added to the four made earlier this year by the special committee, which were:

Requiring a referral to a law firm be made to a specific attorney at that firm who would be responsible for seeing that the referral complies with Bar rules,

Requiring attorneys who join referral services to register with the Bar,

Requiring that the initial contact to the lawyer be made by the client and not the referral service, medical clinic, or other third party,

Improving public education about referral services and related issues.

The special committee is scheduled to meet in June 2012 during the Bar’s Annual Convention in Orlando to potentially approve the final report, which may be provided to the Bar’s Board of Governors for review in July 2012.

Bottom line:  This is the latest in the Bar’s ongoing investigation of potential additional restrictions of lawyer’s participation in for-profit lawyer referral services which is in response to criticism in the media and elsewhere; which may ultimately result in the implementation of new and revised Bar rules which will further restrict lawyer’s participation in these services.  Stay tuned…

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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

 

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

Minnesota Bar Petition alleges that lawyer insulted and abused opposing counsel and said that he hoped that she “sleep(s) with the fishes”

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent Petition for Disciplinary Action filed against a Minnesota lawyer alleging that he abused, insulted, and attempted to intimidate opposing counsel and, amount other insults, said that he hoped that she “sleep(s) with the fishes” as he exited the courtroom.

According to the Petition, a Minnesota lawyer named Peter Nickitas represented a taxicab company in a claim for damages an individual who was represented by a lawyer named Michelle Hurley.  The lawyer is alleged to have insulted and abused Hurley during an arbitration hearing held in 2009.  The arbitrators awarded taxicab company $1,101.26 in damages.

The lawyer filed a motion to vacate the award stating that it was “erroneous and insufficient”.  After the hearing ended, the lawyer allegedly made “multiple and/or threatening comments” to Hurley and, as Hurley approached the courthouse exit, the lawyer “went nose-to-nose with her” and screamed at her, saying (apparently among other things) that he hoped she “sleep[s] with the fishes.”  The Petition also alleges that the lawyer had to be pulled away by an associate as a bailiff approached.  After the incident, Hurley was shaken and “scared” and refused to be alone with the lawyer and had another person accompany her to hearings when the lawyer would be present.

The Petition also alleges that the lawyer represented another individual in a separate lawsuit against the taxicab company (to try to obtain information that would be helpful to the taxicab company in the arbitration matter) which created an actual or potential conflict of interest, and that he failed to fully disclose the foreseeable risks and consequences to that client.  On March 25, 2011, the trial judge issued an Order dismissing that litigation, finding that it was brought “in bad faith and for an improper purpose.”

According to the Petition, the lawyer was previously privately admonished three times and was suspended for 90 days in 2005 for engaging in a consensual sexual relationship with a client, entering into multiple business transactions with the client without properly disclosing the conflict of interest and advising the client to obtain independent counsel, and failing to handle a client matter with adequate diligence and promptness.

Bottom line:  This appears to be another case of a lawyer apparently drinking bad water and going a bit “over the top”, so to speak.  That’s all I have to say about that…updates to follow.

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

Florida Supreme Court amends Bar Rules related to Rule notices, reinstatement, and other issues, and affirms lawyers’ responsibilities to resolve liens in contingency cases

Hello and welcome to this JACPA Ethics Alert which will discuss additional rule changes implemented (and not implemented) by the Supreme Court of Florida in its recent opinion dated April 12, 2012.  I previously discussed amendments to the Bar Rules related to trust accounts and reporting misconduct in mediation in my April 18, 2012 Ethics Alert.  The rule amendments will become effective 7/1/12.  A corrected opinion dated 4/13/12 was issued correcting the effective date only.

The opinion confirmed the Florida Supreme Court’s position that attorneys who represent clients under contingency fee contracts are responsible for negotiating medical liens and subrogation claims that are related to the representation.  The opinion also rejected an amendment allowing out-of-state lawyers to temporarily handle pro bono cases in Florida following a major disaster and also addressed retiring attorneys, publication of official notices, a requirement that lawyers who have business e-mail addresses report them to the Bar, permanent revocation, and requirements for suspended lawyers who seek reinstatement to active status after being suspended for 3 years or more.

The proposed medical lien rule amendment to Rule 4-1.5 (Fees and Costs for Legal Services) was proposed after a study by the Bar’s Board of Governors (BOG) in response to a question proposed by the Professional Ethics Committee as to whether an attorney working under a contingency fee contract could refer medical liens and related issues to a second law firm. That law firm would have been paid under a reverse contingency fee agreement which, if it was in addition to the original contingency, would increase the total fee paid by the client beyond the maximum contingency fee permitted by the Bar rules.

The BOG (and the Bar in its petition) proposed the addition of subdivision (f)(4)(E) to Rule 4-1.5 to authorizing the retention of the second law firm if the client was fully advised and provides informed consent.  The opinion rejected the amendment and stated: “(w)e decline to adopt new subdivision (f)(4)(E).  Indeed, we take this opportunity to clarify that lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.” (emphasis supplied).

 

The opinion also rejected proposed new Rule 1-3.12 which would have permitted lawyers from other jurisdictions to have a limited practice in Florida following a major disaster and a revision to Rule 4-5.5 (multijurisdictional practice) to conform with the proposed new rule.  According to the opinion, “(b)ecause we have concerns about how this rule (1-3.12) would apply, we decline to adopt it.”  The opinion rejected the related changes to Rule 4-5.5; however, other revisions to Rule 4-5.5 were approved.

The opinion also modified a rule revision to allow notice of proposed action by the Board of Governors on a Bar rule to be published in either The Florida Bar News or on the Bar’s website.  The current rule requires publication in the News but does not address notice on the website.  The opinion required that such notices be published in both venues.  Chief Justice Charles Canady dissented and said he would approve the rule as presented by the Bar.  Justice Pariente noted that the new rule would create different notice requirements for Bar rules and court procedural rules, which will continue to be published in full in the News.  Justice Pariente stated: “I encourage the Bar to look at this issue again, in conjunction with procedures for other rule amendments, and consider an alternative proposal that would address the issue of notice but also allow for increased use of the Internet.”

The opinion approved an amendment to Rule 1-3.3, which will now require lawyers to provide a “business email address, if the member has one.”  The opinion also approved an option for a lawyer permanently retire but rejected the Bar’s proposed amendment which would have allowed such retired members to seek readmission by applying to the Florida Board of Bar Examiners. “(W)e have modified the Bar’s proposal to make clear that any member granted permanent retirement is thereafter ineligible to seek reinstatement or readmission to the Bar.” (emphasis supplied).

The opinion also approved rule revisions which increase the requirements and conditions for lawyers who have been suspended for extended periods before seeking reinstatement.  Lawyers who have been suspended for three years or longer will be required to demonstrate they are current with changes in the law, including at least 10 hours of CLE courses for each year they were suspended.  Lawyers who have been suspended for five years or longer will be required to meet the education requirement and also retake the bar exam and the Multistate Professional Responsibility Examination.

In addition, the opinion approved rule revisions which eliminate the option for lawyers who are under disciplinary investigation to agree to a “disbarment on consent”.  Under the revised rules, lawyers who wish to pursue a “disciplinary revocation” must file a petition the Supreme Court which “shall contain a statement of all past and pending disciplinary actions and criminal proceedings against the petitioner.”  If accepted, “(l)ike disbarment, disciplinary revocation terminates the respondent’s license and privilege to practice law and requires readmission to practice under the Rules of the Supreme Court Relating to Admissions to the Bar.

The opinion approved revisions to the fee arbitration rules clarifying that, in order for a claim to qualify for the Bar’s fee arbitration program, there must be no other dispute between the attorney and client other than over fees and the disputed fees may not exceed $100,000.00.

Finally, the opinion approved rule revisions stating that a person may not become a Florida Registered Paralegal or renew as a Florida Registered Paralegal if that person is the subject of a pending Bar UPL investigation and any person found to have engaged in UPL in any state would be prohibited from becoming an FRP for seven years.

Bottom line:  It appears a very significant part of this opinion is the Court’s rejection of a rule amendment which would have permitted lawyers to retain outside counsel to negotiate third party liens and subrogation claims in contingency matters (primarily personal injury and wrongful death) and the opinion’s unequivocal pronouncement that “lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.”

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

Illinois Bar Complaint filed against former public defender alleges that she used the word “sh-t” in court, denied it, yelled in the courtroom, and disclosed client confidences

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent Bar Complaint that was filed against an Illinois assistant public defender who allegedly failed to communicate plea offers to clients, improperly disclosed confidential information, and engaged in disruptive conduct in the courtroom, including yelling and using a curse word (and then denying that she used it).  The case is In the Matter of: Therese Cesar Garza, No. 6180720, Illinois Attorney Registration and Disciplinary Commission No. 2012PR00035 (April 25, 2012).

The Bar Complaint alleges that the lawyer engaged in courtroom conduct that was disruptive to the tribunal, including the lawyer’s alleged use of the “s—“ word and then denying that she used it.  According to the Bar Complaint, the following exchange occurred:

“MS. CESAR: Oh sh-t.

THE COURT: What did you say, Ms. Cesar?

MS. CESAR: Oh shoot, I said. Oh shoot. I’m sorry I didn’t talk to her, Judge. I’m just – – it’s my fault. I’m running around, talking to                         people.

THE COURT: I don’t think that’s what you said.

MS. CESAR: Whatever. I know the word you think I said. My mother never let me say that, and I’ll tell you why. But I said shoot, darn it.”

The Bar Complaint also alleges that the lawyer yelled in the judge’s courtroom and disrupted the proceedings.  According to the Complaint, the following exchange occurred:

MS. CESAR: If I could correct the record, I told the Court at about 11:00 o’clock I had trouble getting people.

And when I finally got through, I talked to Mr. Word. He said he was going to try to come.

“THE COURT: Excuse me. I did not lose my hearing.

MS. CESAR: I did not say he was on the way. He indicated that he would come.

THE COURT: Let me just indicate again, you are yelling on the record. This happens all the time when you don’t get your way.

Because you lose something doesn’t mean you have to start yelling at me. I haven’t gotten deaf over the course of the time

I have listened to your argument. I just don’t agree with you. And it’s okay that people don’t agree.”

The lawyer is also accused of failing to communicate plea offers and disclosing confidential information about her clients to the judge, including one incident wherein the lawyer is alleged to have told the judge, before a plea was entered, that the client stole baby formula to feed his 8-month-old child.

Bottom line:  I’m not sure if it is something in the Illinois water (or perhaps the lawyers in the Public Defender’s offices in Illinois are overworked), but this is the second Illinois PD who has been accused of somewhat unusual behavior and violations of the Illinois Bar Rules in the last few years.  In my February 29, 2012 Ethics Alert, I discussed the case of In re: Disciplinary Proceedings against Kristine Peshek, Case No. No. 2011AP909-D wherein an Illinois lawyer was suspended for 60 days in both Illinois and Wisconsin for disparaging judges, violating client confidences on her blog, and failing to correct her client’s false sworn statements in a court proceeding (and blogging about it).  One of her mitigating factors was that she was overworked.

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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Montana federal judge rules that Florida lawyer whose client committed attempted murder was not required to breach confidentiality and report the client

Hello and welcome to this JACPA Ethics Alert blog which will discuss the media reports that a Montana federal judge recently ruled that a Florida lawyer whose client committed attempted murder and was killed in a shootout in Montana was not required to breach confidentiality and report the client prior to the violent incident.

The lawyer, David Gilmore, prepared a will for Thomas Kyros, an 81-year-old retiree from New Port Richey, who apparently was obsessed with a person named Promethea Pythaitha.  According to the reports, she was a “Greek-American child genius who graduated from Montana State University at 14 with a degree in mathematics”.  Kyros heard about her and began sending her financial support and became obsessed with her.  Pythaitha and her mother, Georgia Smith, eventually refused to communicate with him or accept his support and gifts.  Kyros blamed Smith for the refusal to communicate and, in the will prepared by Gilmore, he gave Pythaitha two-thirds of his estate; however, the will stated in bold that Pythaitha would receive no money “while her mother, Georgia A. Smith, is living.”

In 2010, Kyros drove to Montana where Pythaitha, who was then 19, and Smith lived.  On January 17, 2011, he drove his car into a fence around their home in a remote area of Montana and, according to the reports, when the two women came outside, Kyros shot Smith five times, calling her a “whore” and a “beast”.  Smith survived but Kyros was killed in a subsequent shootout with law enforcement officers.

In October 2011, Gilmore was named a defendant in a federal lawsuit filed by Smith and Pythaitha in the U.S. District Court in Montana.  The lawsuit alleged that Gilmore, who was also the personal representative of Kyros’ estate, knew that his client was in Montana, had enough information to know the client was planning something potentially violent, and should have contacted law enforcement.  To support this allegation, the lawsuit alleged that Gilmore received a fax from Kyros more than a month before the attempted murder which stated that all information about Pythaitha was null and void “for as long as Georgia is alive.  According to the lawsuit, as a result of the shooting, Smith is paralyzed in her left arm and will require “a lifetime of care” and further surgery to repair the wounds caused by Kyros, and both Smith and Pythaitha suffered severe emotional and psychological distress.

The Montana federal judge ruled that Gilmore did not have sufficient information that his client would cause bodily harm to Smith (or Pythaitha) to require him to breach his client’s confidences and disclose the information by reporting him to law enforcement; therefore, he was not required to make the report.

This lawsuit raises some interesting questions about the potential conflict between the law of negligence and a lawyer’s obligation not to disclose confidential information to third parties except under certain circumstances.

Florida Bar Rule 4-1.6 addresses when a Florida lawyer may or must disclose client confidential information:

(b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent a client from committing a crime; or

(2) to prevent a death or substantial bodily harm to another.

(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to serve the client’s interest unless it is information the client specifically requires not to be disclosed;

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;

(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;

(4) to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(5) to comply with the Rules of Professional Conduct.

Bottom line:  In this lawsuit, the judge ruled that the lawyer had no obligation to disclose the confidences of his client to prevent the client’s later violent actions; however, could the lawyer be potentially liable under a theory of negligence for failing to report the client?  That is a legal question which is outside the scope of this discussion; however, whether a lawyer has sufficient information to require mandatory (or permissive) disclosure of client confidences must be examined by each lawyer on a case by case basis.

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, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism

Ohio Court of Appeals Opinion sanctions law firm for bad faith and failing to withdraw when a conflict of interest arose in litigation between two clients

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent opinion of the Ohio 9th District Court of Appeals which sanctioned a law firm for failing to withdraw when a conflict arose between two clients.  The opinion is Carnegie Cos. v. Summit Properties Inc., Ohio Ct. App. 9th Dist., No. 25622 (March 28, 2012).

According to the opinion, Carnegie used the legal services of the law firm of Ulmer & Berne (U&B) in environmental matters arising out of properties in which it had an interest since 1994.  In June 2007, Carnegie contacted U&B regarding an environmental concern arising out of its interest in acquiring a property referred to as the Frontier Shopping Center.  A lawyer for U&B reviewed some documents for Carnegie at that time and informed Carnegie that he would need additional information before reaching a conclusion.  In early February 2008, Carnegie sent additional information to the U&B lawyer related to the Frontier property and in mid-March 2008, the lawyer contacted Carnegie to discuss the additional information.  U&B sent a bill to Carnegie for that discussion.

In August 2007, Pesses, the president of Carnegie, contacted Laven, another U&B lawyer who was representing Summit with regard to the potential sale of the property.  Summit and Carnegie entered into a contract for the sale of the property, but Carnegie later rescinded the agreement and demanded the return of its earnest money.  In February 2008, after Summit refused to return the earnest money, Carnegie sued Summit and Summit counterclaimed alleging, in part, fraud.  Carnegie was represented by the law firm of Miller Goler Faeges LLP (MG) and U&B continued to represent Summit through Laven.  Lawyers from MG spoke several times with lawyers from U&B, advising them of the conflict of interest created by that firm’s concurrent representation of both Carnegie and Summit, and requesting that the firm withdraw voluntarily.  MG also sent a letter demanding that U&B withdraw from further representation; however, the law firm refused to withdraw.  Carnegie then filed a motion to disqualify.

The trial court judge held a hearing and disqualified U&B.  The judge found that the firm acted in bad faith by refusing to withdraw since the existence of a conflict of interest in U&B’s representation of both Carnegie and Summit “was readily apparent” even before Carnegie formally raised the issue by filing he motion for disqualification.  U&B recognized that Carnegie was a current client at the same time that it was representing Summit in a matter adverse to Carnegie and, after it became aware of the conflict of interest, it tried to ensure that there was no internal record of its representation of Summit in the Carnegie-Summit matter so that no conflict of interest would be apparent. The firm also “plainly knew that there was a conflict of interest that could not be maintained absent a waiver,” likely in December 2007, but in any event by March 2008.  U&B also “persisted in its position that there is no conflict requiring a waiver to this day, despite what the evidence demonstrated at the hearing.”

In addition, U&B allowed Laven, who had both a direct and indirect personal interest in continuing his representation of “an important client” (Summit) to make the decision on how to proceed after Carnegie asserted that there was a conflict of interest.  Finally, both Karl and the “ethics attorney” for U&B called Pesses directly to attempt to obtain Carnegie’s waiver of the conflict of interest, despite the fact that Carnegie was represented by counsel from MG.

The opinion stated that “a law firm that is aware it is representing a client in a matter which is directly adverse to the interests of another of its current clients, yet appears to act to conceal evidence of the adverse representation, is acting with a dishonest purpose, conscious wrongdoing, and in breach of a known duty premised on an ulterior motive. A refusal to withdraw from representation of a seemingly more important or lucrative client under such circumstances evidences an ulterior motive to put firm revenue and/or prestige above the interests of other client.”

“We … conclude that a firm which is aware of its representation of directly adverse clients in separate matters, yet seeks a waiver of the conflict directly from one client despite the firm’s knowledge that the client is represented by counsel from another firm, is acting in bad faith. By bypassing opposing counsel, the firm acts with a dishonest purpose, moral obliquity, conscious wrongdoing, and in breach of a duty premised on an ulterior motive to obtain a benefit or advantage it could not otherwise obtain.”  Further, “a firm’s designated ethics attorney, who has no involvement in the representation of either client, clearly demonstrates bad faith when he contacts a client he knows to be represented by another firm in an effort to obtain a conflict waiver from that client.”

The opinion affirmed the trial court’s Order disqualifying U&B and also its findings that Summit and the law firm acted in bad faith and were jointly and severally liable to Carnegie for $79,856.26 for attorneys’ fees and costs that Carnegie incurred in pursuing the motion to disqualify.

 

Bottom line:  What a tangled web (they) weave…the lesson of this saga appears to be that, when a lawyer or law firm identifies a conflict of interest in litigation between 2 current clients, the lawyer or law firm should take appropriate steps to remedy the conflict, including a potential withdrawal from representation.  Regardless of the ultimate resolution of the conflict of interest, the lawyer should not refuse “to withdraw from representation of a seemingly more important or lucrative client under such circumstances evidences an ulterior motive to put firm revenue and/or prestige above the interests of other client.”  This may ultimately result in a finding of bad faith and sanctions…and the Bar (in this case the Ohio Bar) may also come knocking for potential Bar rule violations.

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

 

Leave a comment

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