Monthly Archives: September 2012

Florida Supreme Court suspends Winters and Yonker for misconduct in leaving Mulholland law firm, including theft for removal of Mulholland firm’s client files

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the Supreme Court of Florida suspending Florida lawyer William Winters from practice for 91 days and Mark Yonker for 60 days.  The consolidated case is The Florida Bar vs. William Henry Winters and Marc Edward Yonkers, Case SC10-1333 (September 6, 2012) and the Supreme Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2012/sc10-1332.pdf

As I have previously reported, William Winters and Marc Yonker are personal injury lawyers who now have offices in Florida and other states.  In a highly publicized (and very contentious) case, the lawyers were prosecuted by The Florida Bar for their alleged misconduct related to their actions before, during, and after leaving the Mulholland law firm.  According to the opinion, the Bar Complaint(s) alleged that:

“in 2001, Winters and Yonker made secret plans to leave the Mulholland Firm and begin practicing together, and that in the process, Winters and Yonker: (1) themselves and through a former paralegal for the Mulholland Firm, solicited Mulholland Firm clients to terminate representation by the Mulholland Firm and be represented by Winters’ (2) made misrepresentations to the Mulholland Firm and to Mulholland Firm clients; (3) made copies of and took possession of Mulholland Firm client files without authorization; and (4) improperly used a third attorney‘s name, who never actually joined the new firm, in their new firm name on documents. The complaints alleged that through this conduct, Respondents violated numerous Rules Regulating the Florida Bar.  The Bar filed the Complaint after Mulholland sued the lawyers and won a jury verdict of $3 million which was reduced in 2008 to $1.7 million.”

After extended proceedings were held in 2011, the referee found the lawyers not guilty of the most serious Bar rule violations and recommended that they receive an admonishment for minor misconduct.  The referee also criticized the Bar for waiting until after the Mulholland litigation was completed to prosecute the case(s).

The Florida Supreme Court opinion found that the lawyers solicited clients of the Mulholland law firm to terminate that law firm and hire their new law firm to represent them, made misrepresentations to the Mulholland law firm, made copies of and took files belonging to the firm, and improperly used a third lawyer’s name in their firm name.  According to the opinion, “(t)he Bar argues that Winters and Yonker’s ‘personal use’ of the Mulholland firm’s client files constituted acts of criminal theft under section 812.014, Florida Statutes (2001), and that theft inherently reflects adversely on a lawyer‘s honesty, trustworthiness, or fitness as a lawyer. We agree…Winters‘ and Yonker’s conduct in appropriating client files from their employer for their own personal use constitutes theft. The referee’s findings do not support the recommendation that Respondents be found not guilty of violating rule 4-8.4(b).  Accordingly, this recommendation is disapproved.”

The opinion also found that the lawyers violated rules 4-8.4(c), and 4-8.4(d), rejected the referee’s recommendation of admonishment, and imposed a 91 day rehabilitative suspension on William Winters and a 60 day suspension on Mark Yonker.

Bottom line:  As I have previously reported, the Florida Supreme Court has been closely scrutinizing Bar disciplinary cases and in several prior cases has increased sanctions that were recommended by referees or agreed upon by the Bar and the accused lawyer.  This case (and the Mulholland lawsuit) has drawn extensive media attention and the opinion appears to follow that same trend.

Be careful out there!

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

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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Maryland discipline opinion imposes reprimand on New York lawyer who practiced immigration law in Maryland, failed to disclose that he was not admitted, and represented clients in Maryland state matters

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Maryland Court of Appeals imposing a public reprimand on a New York lawyer who practiced immigration law in Maryland but failed to disclose that he was not admitted in Maryland.  The opinion is Attorney Grievance Commission of Maryland v. Jude Ambe, Misc. Docket AG No. 6, Sept. Term 2011 (February 22, 2012).

According to the opinion, the lawyer was admitted to practice in New York but was not a member of the Maryland Bar.  After his admission in New York, he maintained a law office in Maryland which, according to the lawyer, was maintained solely for the practice of federal immigration law. The lawyer did not maintain an office in New York.  In December 2009, Maryland Bar Counsel received a complaint against the lawyer unrelated to this matter.  The Bar Counsel wrote to the lawyer and told him that, if his practice was limited only to immigration matters, his letterhead and any signs must indicate that he was admitted in New York but not admitted in Maryland, and that his practice was limited only to federal immigration matters.

The lawyer told the Maryland Bar Counsel that he was aware of the restrictions on his practice and that his letterhead would comply with disclosure requirements, including that he handled only immigration matters.  After receiving the response, Bar Counsel closed the complaint against the lawyer on May 3, 2010; however, in June 2010, an insurance company contacted the Maryland Bar and provided copies of several documents received from the lawyer related to claims received by the insurer from three claimants which included “demand letters” on the letterhead of the firm concerning the lawyer’s “clients.”

The letters sent by the lawyer to the insurance company did not have the required language noting the lawyer’s practice limitations, or that he was admitted in New York and not in Maryland.  The Bar Maryland Counsel also received documents from a second insurance company with a separate demand letter on the same letterhead of the firm related to a client named Daisy Epie and confirming that the firm was representing her. The lawyer acknowledged during the proceedings that it was his intent to act as legal representative for Ms. Epie for purposes of communicating with the second insurance company.

On March 17, 2011, a Petition for Disciplinary Action was filed against the lawyer and an evidentiary hearing was held before a Maryland state judge on September 15, 2011.  After the hearing, the judge found that the attorney had violated Md. R. Prof’l Conduct R. 5.5(a) by representing clients in Maryland state tort law cases while not licensed to practice law in the state.  The judge also found that the lawyer drafted demand letters seeking to settle cases arising from four separate state tort claims that could be filed in court and gave legal advice about the state tort claims which constituted the practice of law and in violation of Md. Code Ann. Bus. Occ. & Prof. § 10-206(a)(1) and Md. R. Prof’l Conduct R. 5.5(a).  The lawyer was also found to have violated Md. R. Prof’l Conduct 5.5(b)(2) by failing to clearly indicate on his business cards that he was not licensed to practice law in Maryland.

The opinion found the above violations and also that the lawyer had made false and misleading communications in violation of Md. R. Prof’l Conduct R. 7.1 by failing to disclose the limitations on his practice.  Maryland Rule 7.1 requires out-of-state attorneys practicing federal law in Maryland to disclose that the lawyer’s practice is limited to federal matters and that the attorney is not authorized to practice law in Maryland and the attorney failed to make such disclosures.  The lawyer’s representation of claimants in Maryland state tort matters and failure to disclose the limitations of his practice was also a violation of Md. R. Prof’l Conduct R. 8.4(b) (committing acts reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer), Md. R. Prof’l Conduct R. 8.4(c) (engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation”), and Md. R. Prof’l Conduct R. 8.4(d) (engaging in “conduct prejudicial to the administration of justice”); however, there was no clear and convincing evidence that the attorney knowingly made false statements of material fact in violation of Md. R. Prof’l Conduct R. 8.1(a).

The lawyer argued that he did not have knowledge that his actions constituted the practice of law but the opinion stated that this did not affect whether he had violated the rules since, under Maryland law, “[c]laimed ignorance of ethical duties . . . is not a defense in disciplinary proceedings.”  Importantly, the opinion noted that a suspension by the Maryland Bar would have no effect since the lawyer had no right to practice law in Maryland.   Although the allegations appear to be quite serious, this lawyer received a relatively light discipline of a reprimand.  Since the lawyer was not admitted to practice in Maryland, he could not be disciplined under their Bar rules and the reprimand was apparently imposed in lieu of potential criminal sanctions for the UPL since the lawyer claimed that he did not know he was engaging in the improper conduct by representing clients in Maryland state tort matters.

Bottom line:  Lawyers who have a federal practice such as immigration, disability, or tax law, or who maintain a law office in a state where the lawyer is not licensed to practice law should carefully consider the disclosure requirements and rules related to the unauthorized practice of law.  Ignorance of the Bar rules is not an excuse (although it may be asserted as mitigation) and there may very well have been a different result if this had occurred in Florida.

Be careful out there!

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, Failure to Disclose limitations on practice, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers and social media, Unauthorized practice of law