Monthly Archives: July 2012

Florida Bar’s Special Committee on Lawyer Referral Services issues final report recommending enhanced regulation of lawyers who receive referrals from for-profit referral services

Hello and welcome to this Ethics Alert blog which will discuss the recent recommendation of the Florida Bar’s Special Committee on Lawyer Referral Services.  The Special Committee’s report is available on the Florida Bar’s website: http://www.floridabar.org.

The final report was released on July 26, 2012 and will be presented to The Florida Bar Board of Governors today; however, since this will be the first time that the report has been presented to the BOG, it is unlikely that it will act on the report at that time.  The Bar rules also state that “no action, report, or recommendation of any committee shall be binding upon The Florida Bar unless adopted and approved by the board of governors.”

According to the final report, “(t)he findings and conclusions of the special committee…compel the need for the implementation of changes to the Florida Supreme Court’s Rules Regulating The Florida Bar as they relate to lawyer referral services.  While recognizing that The Florida Bar presently does not directly regulate non-lawyer owned services, the committee determined that greater regulation of attorneys who participate in for-profit referral services is mandated as in the best interest of the public. During the course of the special committee’s deliberations, a variety of recommendations were considered, all of which addressed lawyer conduct while participating in for-profit referral services.”

The special committee made the following recommendations:

1.         A lawyer shall not accept client referrals from any person, entity or service that also refers or attempts to refer clients to any other type of professional service for the same incident, transaction or circumstance, and shall furthermore be prohibited from referring a client to any other professional service in consideration of the lawyer’s receipt of referrals from any lawyer referral service.  In making this recommendation, the special committee recognized its scope and potential impact on for-profit referral services. The special committee also recognized the potential legal implications of such a recommendation. Nevertheless, after consultation with outside legal counsel, the committee unanimously endorsed the recommendation.

2.         A lawyer receiving or accepting client referrals from a referral service shall register such referral service participation with The Florida Bar, including all referral services with which the lawyer participates. In addition, any such lawyer shall provide complete disclosures regarding the lawyer’s relationship with the referral service, ownership of the service, financial arrangements between the service and the lawyer, and the lawyer’s affirmation of compliance with all Bar rules regarding referral services. Such attorney registration shall require payment of a fee as may be determined by The Florida Bar.

3.         A lawyer participating with a referral service for the purpose of receiving or accepting client referrals must designate a lawyer within the lawyer’s firm to serve as the responsible party for the firm for all cases referred to the firm or any attorney in the firm by a referral service.

4.         A lawyer is prohibited from initiating contact with a prospective client referred by a referral service; all such contact must be initiated by the prospective client.

5.         A lawyer accepting referrals from a lawyer referral service shall provide complete disclosures to clients of their participation in referral services, such as either a revised or addendum to the Client’s Statement of Rights, notification in law firm reception areas and inclusion of the referral service participation in lawyer advertising.

6.         The Florida Bar shall implement enhanced disciplinary enforcement of its rules and regulations related to lawyers participating in referral services.

7.         The Florida Bar shall implement enhanced public education of its rules and regulations related to lawyers participating in referral services.

Bottom line:  As I have previously reported, this Special Committee has drawn wide attention and met on various occasions and accepted input from interested parties, including from representatives of the referral services, such as ASK GARY.

The  report urges that the Bar impose much stronger regulation of lawyers who are involved with for-profit referral services.  The major recommendations include prohibiting lawyers from accepting referrals from services which also refer individuals to other professionals, requiring lawyers to register his or her participation with The Florida Bar and make detailed disclosures regarding the lawyer’s relationship with the service, requiring lawyers to designate a responsible lawyer, prohibiting lawyers from initiating contact with the prospective referral, requiring lawyers to make full disclosures of their participation in the referral services to clients, implementing enhanced public education of the rules, and recommending that the Bar “implement enhanced disciplinary enforcement of its rules and regulations related to lawyers participating in referral services.”  If you would like to comment on the special committee’s  report, you should contact The Florida Bar in Tallahassee or your local Florida Bar Board of Governors member.

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!)

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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

Louisiana Disciplinary Board recommends 2 year suspension for lawyer who,inter alia, charged excessive fees to a diminished capacity client for non-legal tasks

            Hello and welcome to this Ethics Alert blog which will discuss the recent recommendation of the Louisiana Attorney Disciplinary Board that a Louisiana lawyer be suspended for 2 years for charging an excessive fee to a client with diminished capacity for performing non-legal tasks, failing to refund a portion of the fees after agreeing to the refund, and making misrepresentations, and failing to communicate with a second client, failing to account for trust funds, failing to place trust funds into a trust account, and failing to properly terminate the representation.  The case is Louisiana Attorney Disciplinary Board In Re: Katherine M. Guste, Board No. 10DB-046 (June 25, 2012).

According to the Board recommendation, the lawyer represented a client with Huntington’s disease, a genetic disorder that can cause cognitive impairment, and charged the client $125.00/ hour for running errands, packing the client’s household goods, taking him to a telephone company office, and taking him to Wal-Mart.  The Board found that the lawyer charged excessive fees in the amount of $30,000.00 and agreed to refund $11,000.00 of the fees but failed to make the refund, and also made misrepresentations in her testimony about her actions.  The Board rejected the hearing panel’s finding that the lawyer violated Louisiana Bar Rule 1.14 by failing to maintain a normal attorney/client relationship when a client has diminished capacity.  In a second matter, the Board found that the lawyer failed to properly communicate with another client, failed to account for and place trust funds into a trust account, and failed to properly terminate the representation.

After considering the facts and finding that “job stress” was not a mitigating factor, the Disciplinary Board rejected a hearing panel’s recommendation that the lawyer be disbarred and instead recommended a two-year suspension.  The Board’s recommendation will now be sent to the Louisiana Supreme Court for a final disciplinary order.

Bottom line:  This lawyer was representing a client who apparently had diminished capacity and was found to have charged the client $30,000.00 in excessive fees, including $125.00/ hour for time spent on non-legal errands and other tasks (among other misconduct) and may be suspended for 2 years.  As lawyers, we have a fiduciary duty to treat our clients fairly, even if they are under a disability.  Florida Bar Rule 4-1.14(a) states that “(w)hen a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”

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!)

Disclaimer:  this blog 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, Client with diminished capacity, Communication with clients, Excessive fee, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer trust accounts

Minnesota lawyer is suspended for an additional 60 days for writing former client’s winning ‘pro se’ appeal brief while suspended

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Minnesota Supreme Court suspending a lawyer for an additional 60 days for writing a brief for a pro se former client while he was under a suspension in an unrelated matter.  The case is In re Petition for Disciplinary Action against Stephen Vincent Grigsby, Minnesota Supreme Court Case No. A11-0976 (July 11, 2012) and the opinion is at 7-11-12 Minnesota SC Opinion 60 day suspension for ghost writing while suspended.

According to the opinion, after the lawyer was suspended from practice for 60 days on April 16, 2009 for unrelated misconduct, he attempted to find alternative counsel for about 30 his clients; however, he was not able find another lawyer to write an appellate brief for a client (J.R.) who was convicted of DUI in a retrial after a judge declared a mistrial without his agreement.  The lawyer sent a letter to the client advising that he had been suspended from practice and could no longer represent him.  After the lawyer was unable to find another lawyer to write the appeal brief, he wrote it himself (at no charge), signed the former client’s name to the pleading and timely filed it with an explanatory letter.  An assistant county attorney assigned to the DUI case on appeal suspected that it had been ghostwritten and reported it to the Minnesota disciplinary authorities.

After an evidentiary hearing, the referee issued a report finding that, by “drafting a legal document on behalf of a client, and submitt[ing] that document in the client’s appeal” while suspended, the lawyer had violated Minnesota Bar Rule 5.5(a), which provides that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.”  The referee also recommended that the lawyer be found guilty of violating Minnesota Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion agreed with the referee that, by drafting an appellate brief while suspended, signing the client’s name to the brief, and falsely stating to the appellate court that the former client was pro se, the lawyer had violated Rule 5.5(a); however, it rejected the referee’s recommendation that the lawyer be found guilty of violating Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion also rejected the lawyer’s argument that, even if the Minnesota Bar Rules prohibited his conduct, he was doing what was necessary to protect his ex-client’s interests in what amounted to an emergency under Minnesota Bar Rule 1.2(a), which provides that a “lawyer may take such action on behalf of the client as is impliedly authorized” by the client.  According to the opinion, the lawyer had other options, such as asking for an extension of time to file the brief, or requesting an ethics opinion regarding his obligations.

After considering the circumstances and mitigating factors, the opinion also rejected the referee’s recommendation of a nine (9) that month rehabilitative suspension which would have required that the lawyer prove rehabilitation in order to be reinstated and imposed a non-rehabilitative 60 day suspension.  The lawyer was also required to retake and pass the ethics/professional responsibility portion of the Bar Exam, and pay costs in the amount of $900.00.

Bottom line:  This lawyer apparently was trying to do the right thing for his client; however, he violated the Minnesota Bar Rules to do it.  Significantly, the lawyer was not found guilty of misrepresentation, fraud and deceit, and/or candor to the tribunal and the opinion also noted that the brief that the lawyer filed must have been effective because the former client won his appeal and the DUI conviction was reversed on former jeopardy grounds.

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.

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Florida Bar Ethics opinion finds that offer and recommendation of waiver of ineffective assistance and prosecutorial misconduct for criminal plea is unethical

Hello and welcome to this Ethics Alert which will discuss the Proposed Advisory Opinion which was recently issued by the Professional Ethics Committee of The Florida Bar which found that that offering and recommending plea where defendant waives ineffective assistance and prosecutorial misconduct claims is unethical.  The link to the proposed advisory opinion is here:  Florida Bar Proposed Ethics Advisory Opinion 12-1.

The Professional Ethics Committee of The Florida Bar (PEC) met on June 22, 2012 and approved Proposed Advisory Opinion 12-1 regarding the ethical propriety of waivers of ineffective assistance of counsel and prosecutorial misconduct in criminal pleas.  The PEC considered the issue after a Florida lawyer requested an opinion.  The opinion initially notes that whether a particular plea agreement is lawful, enforceable and meet constitutional requirements is a legal question outside the scope of an ethics opinion; however, after reviewing the ethics issues, the PEC agreed with the majority of states which have found that it is improper for the prosecutor to make such an offer and for the defense lawyer to advise the client on accepting such an offer.

The opinion refers to Florida Bar Rule 4-1.8(h) regarding agreements limiting a lawyer’s liability for malpractice which states: “(h) 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.”

According to the opinion, since this plea agreement is between the prosecutor and the defendant and an ineffective assistance of counsel claim is not a malpractice claim, on its face, Bar Rule 4-1.8(h) does not prohibit advising a criminal defense client to enter a plea agreement that waives the client’s right  to claim ineffective assistance of counsel in a collateral proceeding; however, “a lawyer should not be permitted to do indirectly what the lawyer cannot do directly” and a defense lawyer’s recommendation that a client waive ineffective assistance claims is analogous to limiting malpractice liability, which is prohibited unless the requirements of this rule are met (i.e. the client is independently represented in making the agreement and/or the lawyer advises the person in writing that independent representation is appropriate in connection therewith).

In addition, unlike malpractice liability, which is a type of conflict that may be waived under specific circumstances with independent representation, the opinion found that the personal conflict created by such a plea agreement cannot be waived because of the adverse interests that it creates.  In concluding that a defense lawyer has a personal conflict of interest when advising a client a potential waiver of the right collateral proceedings regarding ineffective assistance of counsel and also a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. the opinion quoted Rule 4-1.7(a)(2), which provides as follows:  “(a) Representing Adverse Interests.  Except as provided in subdivision (b), a  lawyer shall not represent a client if: *** (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.”

According to the opinion, this conflict is also not one in which the client should be asked to waive and pointed to the comment to Rule 4-1.7 which states that: “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.”  Further, a disinterested lawyer would be unlikely to conclude that the criminal defense lawyer could give objective advice about that lawyer’s own performance.

With regard to the prosecutor’s conduct in offering the plea agreement, the opinion aligns Florida with other states which have found that such an offer is prejudicial to the administration of justice and also assists the criminal defense lawyer to potentially violate Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar.  The opinion states that the committee believed that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct; however, some prosecutorial misconduct can occur unintentionally and (in the rare instance) even intentionally.  Also, the existence of prosecutorial misconduct may be known only to the prosecutor, such as when the prosecutor has failed to disclose exculpatory information.  The opinion states that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position (and may be the only person) who is aware that misconduct has taken place.

According to the Bar’s notice, comments from Florida Bar members on the proposed opinion are solicited and the PEC will consider any comments received at a meeting scheduled for 9:30 a.m. on Friday, September 21, 2012 at the Buena Vista Palace in Orlando in conjunction with The Florida Bar’s Midyear Meeting.  Any comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why the Florida Bar member believes the PEC’s opinion is either correct or incorrect and may contain citations to relevant authorities and comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than August 14, 2012.

Bottom line:  As many of you know, I am a current member of the PEC which considered this opinion, although (much to my chagrin) I was unable to attend the September 22, 2012 meeting.  This was (and continues to be) a hotly debated and contested ethics issue and, if you are interested, I would encourage you to comment on this proposed PEC advisory opinion.

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!)

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Ethics of criminal plea waivers, Florida Lawyer Ethics and Professionalism, Ineffective Assistance of Counsel, joe corsmeier, Lawyer discipline, Lawyer ethics, Legal malpractice, Prosecutorial misconduct ethics