Monthly Archives: October 2012

Illinois disciplinary board recommends 6 month suspension for lawyer who “overreached” on a fee and sent communication to a prosecutor violating attorney/client confidentiality and implicating client

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Illinois disciplinary review board report and recommendation that a criminal defense lawyer receive a 6 month suspension for his misconduct in representing and defending clients in two criminal cases.  The disciplinary recommendation/report is In the Matter of: G. Ronald Kesinger, No. 1452908, Commission No. 2011PR00025 (October 24, 2012).  The opinion is here:  http://www.iardc.org/HB_RB_Disp_Html.asp?id=10624.

According to the report, in the first case, an individual named Mays was arrested in December 2008 in Champaign County, Illinois and charged with the first degree murder of his neighbor, Spinks, who was killed by a single gunshot while standing in his apartment doorway.  In May 2009, the lawyer agreed to represent Mays for a set fee of $15,000.00.  Mays initially told the lawyer that he was not involved in the murder and that he had returned home that night from work accompanied by two female co-workers and discovered that his apartment had been burglarized.  He claimed that whoever had killed Spinks had also stolen his property and had framed him by leaving his cap and jacket at the crime scene.

On August 26, 2009, five days before trial, the Mays’ story apparently dramatically changed and, after being told the new story, the lawyer sent correspondence to the prosecutor describing the new story in detail.  According to the lawyer’s correspondence, Mays and Shaw went to Spinks’ apartment and Spinks opened the door and, when Spinks saw Mays and Shaw, he tried to close the door but Mays tried to “put his arm through the door to get in”  and  “the door hit the gun which Shaw had in his hand and it discharged”.  On August 27, 2009, the lawyer also sent letters to two witnesses, Kathleen Faber and Roger Brown, which disclosed the information Mays had told him, in an apparent effort to persuade the two witnesses to talk to him.

On August 28, 2009, the prosecutor told the lawyer in an e-mail that he was going to file additional criminal charges of home invasion and felony murder against Mays and, on August 31, 2009, the prosecutor filed a motion to add the additional charges.  The lawyer objected and claimed that he was surprised by the new charges and requested a continuance of the trial.  At the hearing on the motion, the prosecutor argued that the lawyer’s communication was “tantamount to a confession to a felony murder”, that the charges could not have been a surprise to the lawyer, and that the additional charges were supported.  The court granted the  motion to add the charges and denied the lawyer’s request for a continuance.  The lawyer then attempted to withdraw on the morning of the trial, the court denied the motion, the trial was held, and Mays was convicted.

The lawyer told the Illinois review board that his communication was “an attempt to get a plea agreement” and to let the prosecutor know what testimony his client “would have to offer”.  The lawyer also said that he did not understand that his communication might be viewed as an admission to the additional crimes of home invasion and/or felony murder.  Astonishingly, the lawyer told the review board that he did not know the Illinois felony murder law and he also conceded that he did not have the client’s informed consent to the disclosure.

In the second case, the client, Bufford, was one the three defendants charged with possession of cocaine, each of whom the lawyer agreed to represent for a flat fee of $5,000.00. The charges against the other defendants were dismissed; however, the case against the client remained pending.  At the lawyer’s request, the client assigned his bond refund to the lawyer; however, since the $10,000.00 bond was greater than the fee of $5,000.00, he asked the lawyer to provide written confirmation of the fee arrangement.  The lawyer then sent a letter stating: “Please be reminded that you posted $10,000 to be released from jail.  Inasmuch as my fee is only $5,000.00, I will refund to you any amounts left over after deducting the sum of $5,000.00.”

The trial was set for February 23, 2009.  On February 19, 2009, the lawyer sent correspondence to the client demanding additional fees stating that he was “getting perturbed” about the number of hours he had spent on the case and about the number of hearings he had attended and further:

“I have reviewed your file in anticipation of a trial next Monday. I find that it has been necessary to appear in Court thus far fifteen times since I first appeared on March 11, 2008.  I anticipate I will have to appear on Monday, Tuesday and Wednesday for another twenty-five hours. Since I must expend five hours each time I must appear in Court, fifteen different appearances means seventy-five hours of time. Therefore, I will have expended over one-hundred [sic] hours on your case. When charging by the hour, my customary and usual fee is $250 per hour. This means the legal fee should be $25,000.  I remind you that you paid me $5,000. It is necessary that you assign over the remainder of the Bail Bond in order for me to be adequately compensated for this case. Accordingly, I require that you sign the enclosed Assignment of Bond before I proceed on Monday.

The client did not receive the correspondence until after the February 23, 2009 court date.  On the morning of February 23, 2009, the lawyer met with the client and discussed the amount of time he was spending on the case.  He showed the client a document that he claimed showed the hours he had spent on the client’s matter and requested/demanded the remainder of the bond refund as a fee.  The client refused and later testified that the lawyer then replied that the “money (was) signed over to him anyway” and that he was going to tell the judge he had a conflict of interest and ask to withdraw from the representation.  The lawyer testified that he decided to file a motion to withdraw because the client insisted that certain witnesses be called, and the lawyer did not believe the witnesses would testify truthfully.  He admitted that the client’s refusal to pay additional fees “played a role” although not a “primary role” in his decision to file the motion to withdraw.

The lawyer then filed a motion to withdraw stating as grounds “irreconcilable differences in strategy in that Defendant desires to proceed at trial in a manner that would cause his attorney to violate the Supreme Court Rules of Professional Conduct.”  The client told the judge that he consented to the motion to withdraw and the judge granted and granted the client 21 days to hire new counsel.  The client hired new counsel and the criminal case was dismissed in January 2010.

On February 2, 2010, the Clerk of the Court sent a bond refund check in the amount of $9,000.00 to the lawyer and he cashed the check and kept the entire amount.  He testified that when he received the check, he believed that the client had signed the entire bond refund over to him and, when he checked his file, he saw an unsigned bond assignment and his letter of February 19, 2009, and thought he was entitled to the entire refund.

Sometime in February 2010, the lawyer sent the client correspondence stating that he had spent over 100 hours on the case, that his customary fee was $250.00 an hour, and enclosing a document that showed thirteen court appearances for five hours each, which included travel time of four hours to and from Champaign.  At the disciplinary hearing, the lawyer admitted that, for the first eight appearances, he also was in court representing the co-defendants.  The lawyer had charged five hours of time to draft a two page discovery motion and ten hours to draft a one page response to a motion for joinder of the cases and appear on the motion.

The lawyer testified at the board hearing that he realized that he might not have been entitled to the entire bond refund after he received notice of the disciplinary charge and after he checked with the clerk’s office and learned that the client had not signed over the remainder of his bond to him, he was “mortified”.  The lawyer sent a letter to the disciplinary counsel stating that his memory was faulty and he also sent a refund check in the amount of $4,000.00 to the client with an apology in March 2011.  The lawyer claimed that he had a “lot of things on my plate” and was distracted and going through a divorce in 2010 and was caring for two teenage daughters.  He also said that he has trouble with his memory and did not intentionally convert the funds.  The board’s report found that the lawyer engaged in overreaching the attorney-client relationship and breached his fiduciary duty in his attempts to renegotiate his fee with the client and that he had converted the funds, but that he did not act with a dishonest motive.  The review board recommended a six-month suspension for the lawyer’s misconduct.

Bottom line:  A criminal defense lawyer should not send letters to prosecutors with client confidential information that may amount to admissions of additional crimes “to attempt to get a plea” (especially without at least consulting with the client) and should be familiar with potential crimes with which the client may be charged (particularly before making admissions which may implicate him (or her) in those crimes), and should not take a fee (or a bond refund) that he or she has no right to take…

…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, Attorney/client privilege and confidentiality, Ineffective Assistance of Counsel, joe corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper fees, Lawyer lack of competence, Lawyer sanctions

Proposed Florida Bar Ethics Opinion states that lawyers may authorize non-lawyer staff to complete the certification and e-file court documents using the lawyer’s credentials

            Hello everyone and welcome to this Ethics Alert blog which will discuss proposed Florida Bar Ethics Advisory Opinion 12-2 which was unanimously approved by The Florida Bar’s Professional Ethics Committee (PEC) at its meeting on September 21, 2012.  The proposed advisory opinion states that lawyers may authorize non-lawyer staff to use their credentials to electronically file documents though the e-filing portal in the new Florida electronic filing system.  The proposed opinion is available on The Florida Bar’s website at http://www.floridabar.com.

The Florida E-filing Portal will be used for all electronic court filings and only lawyers are permitted to obtain user names and passwords.  According to information provided to the PEC, court clerks were receiving questions about whether lawyers could allow their support staff to use their credentials to file on behalf of the attorney under this procedure.

In 2011, the Florida Courts Technology Commission, which is responsible for developing standards for e-filing, adopted the following certification to be used when documents are filed through the E-Portal:

I certify that the filing transmitted through the portal, including all attachments contains no confidential or sensitive information, or that any such confidential or sensitive information has been properly protected by complying with the provisions of Rules 2.420 and 2.425, Florida Rules of Judicial Administration.

At its May 2012 meeting, the Technology Commission amended the certification as follows:

The attorney filing, or directing and authorizing this filing (including all attachments), certifies that it contains no confidential or sensitive information, or that any such confidential or sensitive information has been properly protected by complying with the provisions of Rules 2.420 and 2.425, Florida Rules of Judicial Administration.

The Florida Courts E-Filing Authority, which oversees the e-filing portal, initially voted to approve support non-lawyer staff’s use of the credentials to e-file documents; however, it later rescinded the decision stating that it did not believe that it was authorized to decide the issue.

Proposed Ethics Advisory Opinion 12-2 states that electronic filing is a ministerial function similar to physically transporting a document to the clerk’s office and hence under Bar rules can be delegated to properly supervised non-lawyer employees.  “A prudent lawyer will monitor the non-lawyer’s activity and should immediately change the lawyer’s password if a non-lawyer with access to the lawyer’s credentials leaves the lawyer’s employ or demonstrates unreliability in using the E-Portal,” the proposed opinion states.

With regard to confidentiality, the proposed opinion states that the non-lawyer employee would be permitted to check the required certification box when e-filing under the current language of the certification, “so long as the lawyer specifically reviews the documents to be filed, ensures that the documents are in compliance with the confidentiality provisions of Florida Rules of Judicial Administration 2.420 and 2.425, and instructs the non-lawyer employee to make the certification upon filing the documents.”  The proposed opinion also states that the opinion applies to filings through the portal but does not address or apply to the electronic signing of documents.

According to the Bar’s Notice, Florida Bar members may comment on the proposed opinion and the PEC will consider any comments at an upcoming meeting, which has not been scheduled.  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 committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. 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 30 days from the date of publication of the notice.

Bottom line:  Lawyers be aware:  E-filing in Florida is becoming a reality.  According to this proposed opinion, a lawyer is not required to actually perform the ministerial task of filing a court document.  I will keep you posted…

…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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Filed under Attorney Ethics, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer supervision of non-lawyers

North Dakota lawyer receives reprimand for violating conflict of interest rules in representing both the defendant and victim in a single criminal case and making false statements to prosecutor

            Hello everyone and welcome to this Ethics Alert blog which will discuss the recent North Dakota Supreme Court disciplinary opinion reprimanding a lawyer for violating conflict of interest rules by representing both the defendant and victim in a single criminal case and making false statements to the prosecutor.  The case is Disciplinary Board of the Supreme Court of the State of North Dakota v. Blake D. Hankey, No. 20120304, 2012 ND 206 (October 15, 2012).  The opinion is here:  http://www.ndcourts.gov/court/opinions/20120304.htm

According to the opinion, the lawyer was admitted to practice in North Dakota on May 5, 2005 and he “undertook dual representation of an alleged perpetrator and alleged victim of the crimes of aggravated assault and terrorizing.”  The “alleged perpetrator” and alleged victim executed a single representation agreement; however, since there was a no-contact order between them, the alleged victim signed in the lawyer’s office and the “alleged perpetrator” signed at the correctional center where he was being held on the criminal charges. The lawyer had the clients execute a waiver of conflict of interest

When he spoke with the criminal prosecutor handling the case, the lawyer failed to advise her that he also represented the alleged victim.  When she learned of the dual representation, the prosecutor confronted the lawyer about the apparent conflict of interest and the lawyer falsely told her that he had cleared any conflict with his partners.

The lawyer was charged with violating the following North Dakota disciplinary rules: 1.7(a) a lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests; 1.2(A)(3), a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 8.4(c), a lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.

After a hearing, a disciplinary panel found that the lawyer’s conduct violated Rule 1.7(a), by representing one client whose interests were “inescapably adverse” to another client because they were alleged perpetrator and alleged victim of crimes and because he took steps that were adverse to each of them but that he did not violate Rule 1.2(A)(3) and Rule 8.4(c) since the false statement that he had cleared the conflict of interest with his partners did not affect the analysis and did not help him in any way and should not have mattered to the prosecutor. The panel also found that the lawyer did not have an ethical duty to disclose the victim’s status as his client before he was asked about it by the prosecutor.  The panel recommended that the lawyer be reprimanded and pay the costs.

The opinion upheld the violation of Rule 4-1.7(a) but reversed the panel’s recommendation that the lawyer did not violate Rule 8.4(c) and found that there was clear and convincing evidence that the lawyer violated the rule since he admitted making the false statement that he had cleared the conflict of interest with his partners.  The opinion upheld the recommended sanction of a reprimand and payment of costs.

Bottom line:  the facts and result of this case are a bit crazy, to say the least.  Not only did the lawyer represent both the alleged “perpetrator” and alleged victim in a single criminal case, but he also falsely claimed to the prosecutor that he had disclosed the dual representation to his partners and that they had approved the representation (the lawyer apparently never thought that the conflict might not be waivable by the clients either).  Somewhat surprisingly, the lawyer received only a reprimand.

…be careful out there!

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, Conflict of interest criminal cases, joe corsmeier, Lawyer conflict of interest, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misrepresentation, Lawyer sanctions

Ohio lawyer receives stayed 6 month suspension for providing his electronic signature and attorney-registration number to a Florida law firm and failing to supervise the firm’s activities

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Ohio Supreme Court disciplinary opinion imposing a 6 month stayed suspension of a lawyer who provided his Ohio attorney-registration number and electronic attorney signature to a Florida based corporation and failed to supervise the firm’s activities.  The case is Disciplinary Counsel v. Lorenzon, Slip Opinion No. 2012-Ohio-4713 (October 16, 2012).  The opinion is here:  http://www.supremecourt.ohio.gov/ROD/docs/pdf/0/2012/2012-Ohio-4713.pdf.

According to the opinion, on September 15, 2008, the lawyer entered into an “of counsel” agreement with Consumer Law Group, P.A. (“CLG”), a Florida law firm that negotiated debt on behalf of consumers. The agreement provided that the lawyer would be paid $1,000.00 each year to serve as local counsel for the firm and that he would execute a fee contract with each Ohio client.  To facilitate execution of the fee contracts, the lawyer provided CLG with his electronic signature and Ohio attorney-registration number.

The CLG agreement stated that “(the lawyer) may be needed to answer client questions from time to time”, which it was estimated would be no more than three hours per year.  The lawyer also would not be obligated to represent any clients in court or before any agency or panel.  In September 2008, the lawyer received the $1,000.00 payment and provided his electronic signature and attorney-registration number to CLG.  In May 2009, clients named Floyd and Mary Brown sued the lawyer and CLG to terminate a November 2008 fee contract with CLG.  The lawyer was the only representative of CLG identified in the fee contract, which also had the lawyer’s electronic signature and Ohio attorney-registration number.  The Browns settled their claims against the lawyer and the owner of CLG and received a full refund.

The lawyer testified that he had no knowledge of the Brown fee contract and that he later learned that CLG had used his name, electronic signature, and attorney-registration number to enter into at least three other contracts without his knowledge.  He testified that he believed that he would be responsible for overseeing all of CLG’s Ohio client cases to insure that their representation complied with the “Ohio ethics rules” and in their best interests.  He had approved a blank form fee contract for CLG use for Ohio clients and he believed that he would receive each contract by e-mail, approve it, and send it back to CLG, where his electronic signature would be affixed to the contract.  He believed that this procedure would be easier and take less time than actually signing each contract, scanning it, and sending it back to CLG but he agreed that the agreement with CLG did not state that he was to review each fee contract and that it also authorized CLG to apply or use his signature on correspondence and forms that he had preapproved.  After a hearing, the Ohio grievance panel found that the lawyer engaged in conduct that adversely reflected on his fitness to practice law and recommended a stayed 6 month suspension.

After stating that “the facts of this case are unique”, the opinion found that the lawyer’s conduct was analogous to cases in which lawyers failed to properly supervise their employees.  After considering the mitigating factors and “the absence of any evidence to show that any clients were harmed”,  the opinion agreed with the disciplinary panel and imposed a six-month stayed suspension.

The opinion also stated that “(b)ecause an attorney’s signature, whether actual or electronic, affixed to a document along with an attorney-registration number reflects personal assent to or approval of a document, the attorney must jealously guard its use to protect innocent third parties as well as the attorney’s own reputation.  Here, (the lawyer’s) failure to properly supervise the use of his signature exposed him to unanticipated professional liability at the hands of an allegedly unscrupulous person. But more importantly, by loaning his good name without retaining adequate control over its use, he exposed vulnerable and unsuspecting Ohio consumers to the questionable practices of an out-of-state debt-negotiation firm.  Based upon this conduct, we agree that (the lawyer) engaged in conduct that adversely reflects upon his fitness to practice law…(a)nd, although we agree that the facts of this case are unique, we find that (the lawyer’s) conduct and the attendant risk of harm to third parties are analogous to cases in which attorneys have failed to properly supervise their employees.” (emphasis supplied).

Bottom line:  Lawyer’s beware, with the advent of electronic signatures, it is even more important for lawyers to take steps to protect themselves from the misuse of these signatures by others, including employees and, in this case, out of state law firms.  According to this Ohio opinion, a lawyer who decides to become involved with an out of state law firm as “local counsel” and provide his or her electronic signature and attorney number must insure that the law firm’s activities comply with the ethics rules, which includes supervision of their activities, or risk discipline.

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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Filed under Attorney discipline, Attorney Ethics, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism

South Carolina lawyer receives reprimand after telling judge that he was retained and later failing to appear and claiming that there was no representation since no fee agreement was signed

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent South Carolina Supreme Court opinion reprimanding a lawyer for failing to attend court hearings on behalf of a client after telling the judge that he represented the person and then claiming in the discipline case that there was no representation since the client had not signed a fee agreement.  The case is In the Matter of Eleazer R. Carter, South Carolina App. Case No. 2012-211406, Op. No. 27179 (October 10, 2012) and the opinion is here:  http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27179.pdf.

According to the opinion, in September 2008, Stacey Daniels retained a lawyer who filed a lawsuit as a result of a car accident.  That lawyer withdrew in May 2009 and the client later contacted the disciplined lawyer.  The client met with the lawyer at his office and they discussed the fee arrangement, prior settlement offers, authorization for medical records, and possible witnesses if the case went to trial.  At the time of the meeting, discovery and some settlement negotiations had already occurred.

In September 2009, the client attended a court proceeding on the case and told the circuit judge that the lawyer was representing him.  The lawyer did not appear; however, he happened to be at the courthouse on another matter and was brought to the judge.  The lawyer told the judge and opposing counsel that he was representing the client and the judge continued the case until the next term of court.

In March 2010, the lawyer again failed to attend a scheduled court proceeding and the client was again present.  Opposing counsel then moved to dismiss the case, but the judge again continued the case until the next term.  The following month, opposing counsel served the lawyer with notice of the deposition of the client; however, the lawyer never informed the client of the date and neither the lawyer or the client attended the deposition. The lawyer also never told opposing counsel he would not be at the deposition or that he was not representing the client.

 

Opposing counsel then filed a motion to dismiss the case for failure to prosecute and, when the case came up (and the lawyer was again not present), the judge called the lawyer and informed him that the case was going to move forward.  Although the lawyer knew that the client was incarcerated when he received the motion to dismiss, he never contacted the client about it.  The lawyer then argued against the motion to dismiss and, during that hearing, he informed the court he was not representing the client.  The case was then dismissed by the judge.  The lawyer forwarded the order dismissing the case to the client with a handwritten note stating the case had been dismissed because they had not appeared in court.  Perhaps inevitably, the client filed a Bar grievance against the lawyer.

At the hearing held before a grievance panel, the lawyer incredibly argued he had never represented the client since there was no signed fee agreement, which was required since it was a contingent fee and the fee agreement was required to be in writing.  The lawyer argued that, in the alternative, if he was actually representing the client, he represented him diligently.

The grievance panel did not agree with either of the lawyer’s theories and found that he violated South Carolina Bar Rules related to scope of representation, diligence, communication, termination of representation, and conduct prejudicial to the administration of justice.  The panel also considered the lawyer’s disciplinary history in aggravation.  The lawyer was admitted in 1989 and received a letter of caution in January 2002 with a finding of minor misconduct, a letter of caution finding minor misconduct in July 2002, a letter of caution in July 2008 (around the time he began representation of the client) and two letters of caution in May 2010 finding minor misconduct.  Notwithstanding the above facts and the aggravation, the panel recommended that the lawyer receive an admonition. pay the cost of the proceedings, and complete Ethics School within six months of the Court’s final order.

The South Caroline Supreme Court’s opinion rejected the proposed admonition and ordered a public reprimand.  In response to the lawyer’s argument that he was not representing the client since there was no signed fee agreement, the opinion stated: “Rule 1.5 and our opinions sanctioning lawyers for violation of this rule are designed to protect clients from inadequate representation, not to determine the presence of an attorney-client relationship.”  The client “had reason to believe that (the lawyer) represented him”; therefore, an attorney/client relationship was established.  The client also testified that he had signed a fee agreement; however, a copy was not provided to him.

After discussing and upholding the panel’s findings regarding the various Bar rule violations, the opinion stated that “(b)ased on the facts of this case as well as (the lawyer’s) extensive previous disciplinary history, we hold the misconduct warrants a public reprimand.”  The lawyer was also ordered to pay the costs within thirty days and complete the Ethics School within six months of the opinion.

Bottom line:  This case is somewhat bizarre for a variety of reasons, including the fact that, according to the opinion, the lawyer initially told the trial judge that he was representing the client and failed to appear at various hearings and meetings.  He then failed to tell the client about a scheduled deposition and failed to appear at the deposition.  He later argued against a motion to dismiss and told the judge that he was not representing the client and, when he received the Order dismissing the case, he sent it to the client with a handwritten note stating that the case was dismissed because they had not appeared in court.  Finally (and most bizarrely), the lawyer argued alternatively (and contradictorily) that he did not represent the client or, if he did, he represented the client diligently.  I am not making this stuff up!

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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Filed under Attorney discipline, Attorney Ethics, Communication with clients, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer lack of competence, Lawyer lack of diligence, Lawyer sanctions

Pennsylvania Assistant District Attorney receives public censure after arrest and diversion for possession of cocaine and marijuana

Hello everyone and welcome to this Ethics Alert which will discuss the recent Pennsylvania disciplinary opinion imposing a public censure on a former state criminal prosecutor who was arrested of possession of cocaine and marijuana and later received a diversion and dismissal of the criminal charges.  The case is Pennsylvania Disciplinary Counsel vs. Yanoff, No. 71 DB 2012 (October 4, 2012).

According to the Pennsylvania Supreme Court opinion, on November 29, 2008, the lawyer was in a vehicle in a driveway near a city street in Philadelphia, Pennsylvania.  A police officer observed him empty a white powdery substance onto a magazine, and use a straw to snort the substance.  The lawyer was arrested and found to be carrying a blue “ziplock” packet containing 1.079 grams of cocaine and a small plastic bag containing .79 grams of marijuana.

At the time he was arrested, the lawyer had recently been hired as an Assistant District Attorney in Philadelphia.  Following his arrest, the District Attorney’s office suspended the lawyer without pay.  On November 30, 2008, the lawyer was arraigned and formally charged with possession of a controlled substance (cocaine) and possession of a small amount of marijuana, in violation of Pennsylvania criminal statutes and he resigned his position as an Assistant District Attorney on December 8, 2008.

On December 21, 2009, the lawyer entered a nolo contendere plea to possession of a controlled substance (cocaine) and possession marijuana and was placed on supervised probation for a maximum term of 12 months, subject to drug testing and screening.  The lawyer successfully completed the probation on December 29, 2010 and the criminal charges were dismissed without an adjudication of guilt.

The Pennsylvania Disciplinary Counsel charged the lawyer with violating Pennsylvania Bar Rules.  The lawyer subsequently entered into a consent agreement wherein he admitted violating Pennsylvania Rule of Professional Conduct: RPC 8.4(b), which states that “it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” and agreed to a discipline of public censure.   According to the consent agreement (which was adopted in the opinion), the following mitigation was present:  remorse by pleading nolo contendere to the criminal charges; payment of the full amount of costs that was imposed upon him by the Court as a result of his plea; admission to engaging in misconduct and violating the charged Rule of Professional Conduct;  “remorseful for his misconduct and understands he should be disciplined, as is evidenced by his cooperation with Petitioner and his consent to receiving a public censure”; no prior criminal history; and no prior disciplinary history.

Bottom line:  Notwithstanding the fact that he was a state criminal prosecutor, this Pennsylvania lawyer’s criminal case was dismissed and he received a minimal discipline of a public censure (reprimand) by showing remorse and other mitigating factors.  I don’t know if I need to say this, but lawyers (particularly those who are supposed to uphold the criminal laws) should not possess and use cocaine and possess marijuana since it is obviously against the law.  A lawyer/state prosecutor in Florida might also not receive such a relatively minimal discipline and would almost certainly lose his or her job.

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, EsquireLaw 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

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