Monthly Archives: December 2012

North Dakota Supreme Court suspends lawyer for an additional 6 months for failing to notify “like 9,450 clients” of his prior disciplinary suspension

Hello everyone and welcome to this Ethics Alert blog which will discuss recent North Dakota Supreme Court opinion which imposed a 6 month suspension on a lawyer who failed to notify clients of a previous suspension although he executed an affidavit attesting that he done so.  The North Dakota disciplinary case is In re Loren McCray, 2012 ND 249, No. 20120363 (12/3/12).  The disciplinary opinion is online at: http://www.ndcourts.gov/court/opinions/20120363.htm.

According to the opinion, the lawyer was suspended from practicing law in North Dakota in October 2008 and, as a condition of the suspension, he was required to send notice of the suspension to all of his clients and execute an affidavit attesting to same and file it with the court.   After the suspension was imposed, the lawyer filed an affidavit attesting that he had served 106 notices to clients; however, he had testified at the hearing which resulted in the 2008 suspension, that his law firm “had like 9,450 (clients) or something along those lines” at that time.

In correspondence dated April 30, 2009, the North Dakota disciplinary counsel asked him to explain the apparent discrepancy between the number of clients notified (106) and the number that he claimed in his sworn testimony (“like 9,450”).  In a response to disciplinary counsel dated May 20, 2009, the lawyer stated that on May 15, 2008, he “sold Bradley Ross Law and its clients to Facemyer and Associates in Utah.”  He also stated that “on or before September 17, 2008, all remaining Bradley Ross Law clients and there (sic) files had been transferred to Facemyer and Associates.”

Not surprisingly (or maybe quite surprisingly), after receiving this response, the North Dakota disciplinary counsel requested that the lawyer provide more information showing that he had complied with notice requirements of the suspension order.  In a Stipulation, the attorney admitted that he failed to provide the requested information until September 10, 2012, that he violated North Dakota Bar Rule 8.1(b), which provides that “a lawyer shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority”, and that his failure to provide clients with notice, by certified mail, of the sale of his law firm violated the notice provisions of North Dakota Bar Rule 1.17(c); however, “the actual or potential injury resulting from the violation was substantially alleviated by (his) efforts to provide notice by other means.”  The disciplinary hearing panel recommended that the Stipulation be accepted and that the lawyer be suspended for 6 months.  The North Dakota Supreme Court opinion adopted the Stipulation and recommendation and suspended the lawyer for 6 months effective December 3, 2012, the date of the order.

Bottom line:  This lawyer “planted the seeds” of his own suspension, so to speak, and he may also deserve the “dumbest lawyer” award for 2012.  The facts of the case itself are also a bit puzzling: why did it take so long for the case to be concluded (over 3 1/2 years) and why in the world would the lawyer state that he “had like 9,450 (clients) or something along those lines” at the hearing on his previous Bar disciplinary case?  Was he just trying to brag?  We may never know…

I wish everyone a very happy and safe holiday and a healthy and prosperous 2013…and 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, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer failure to notify clients of suspension

Florida Bar’s Board of Governors approves Advisory Opinions related to waivers of ineffective assistance and prosecutorial misconduct and permitting lawyers to authorize non-lawyers to use E-Portal credentials

Hello everyone and welcome to this Ethics Alert blog Update which will discuss the approval of Ethics Opinions 12-1 and 12-2 by the Florida Bar Board of Governors of The Florida Bar at its meeting on December 7, 2012.  Advisory Opinion 12-1 can also be viewed online at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/6a2611d9cdcc8db485257ad00070e3fb!OpenDocument and Advisory Opinion 12-2 can be viewed at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/4e9e9f5062025c5a85257ad00071b560!OpenDocument.

As I have stated in my previous Ethics Alerts, the Professional Ethics Committee of The Florida Bar, after extensive debate and review, issued proposed Advisory Opinion 12-1, which determined that it is unethical for a criminal defense lawyer to advise a client to accept a plea bargain that prevents the client from raising future claims of ineffective assistance of counsel or prosecutorial misconduct.  The opinion also states that it is unethical for prosecutors to offer such a plea condition because it could induce defense attorneys to act unethically and is prejudicial to the administration of justice.  The Florida Bar’s Board of Governors reviewed and approved the opinion at its meeting on 12/7/12 and it is now final.

The Florida Bar’s Board of Governors also approved proposed Advisory Opinion 12-2 at its meeting on 12/7/12 which opines that lawyers may permit non-lawyers to use the lawyer’s access credentials for filing documents with a court using the E-Portal.  The executive summary states that “(t)he lawyer must properly supervise the nonlawyer, should monitor the nonlawyer’s use of the E-Portal, and should immediately change the lawyer’s password if the nonlawyer employee leaves the lawyer’s employ or shows untrustworthiness in use of the E-Portal.”

Bottom line:  The controversial Advisory Opinion 12-1 and the not so controversial Advisory Opinion 12-2 are now final. As I have said in the past, Ethics Advisory Opinions are not binding or precedential; however, they can be and are used for guidance by lawyers and the basis for prosecution by The Florida Bar if they are not followed.

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 Ethics, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Florida lawyer ethics opinion 12-2 e-portal filing authorization, joe corsmeier, Lawyer ethics, Lawyer ethics opinions

Massachusetts Supreme Judicial Court amends Massachusetts Bar Rules to require most fee arrangements to be in writing effective January 1, 2013

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Order issued by the Massachusetts Supreme Judicial Court which will amend the Massachusetts Bar Rules to require most fee arrangements to be in writing effective January 1, 2013.  The Order is  online at: http://www.mass.gov/obcbbo/SJCRPC10-24-12.pdf.

The Supreme Judicial Court Order amends Massachusetts Bar Rule 1.5(b) and will require that the scope of the representation and basis or rate of the fee and expenses be communicated to the client in writing in most circumstances.  This amendment is a major change from the current version of the Bar Rule, which states that only contingent fee agreements must be in writing and other types of fee arrangements should “preferably” be communicated in writing.  The section as amended provides:

(b)(1) Except as provided in paragraph (b )(2), the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing to the client.

A new comment to the Massachusetts Bar Rule explains what is required and states that “a simple memorandum or copy of the lawyer’s customary fee schedule is sufficient if the scope of the representation and the basis or rate of the fee is set forth.”  The comment also notes that the lawyer ordinarily should send the written fee statement to the client before any substantial services are rendered.  Section (b)(2) of the revised rule creates exemptions to the requirement of a written statement for a single-session legal consultation and for a situation in which the lawyer reasonably expects the total fee to the client will be under $500. This section additionally states that, where an indigent representation fee is imposed by a court, a writing is not required because no fee agreement has been entered into between a lawyer and a client.

Whether the writing is a fee agreement executed by both parties or is a letter or memorandum from the attorney to the client, it must set forth the scope of the representation and the basis or rate of both the fee and expenses.  In addition to describing the services to be provided, the agreement should also specify, the limitations on the services, if any, such as the exclusion of an appeal from the representation or if other  types of potential relief will not be pursued.  The writing must also state whether the fee is a flat/set fee or a retainer against hourly charges and, if it is an hourly retainer, it must disclose the hourly rate.  The writing must also disclose how expenses will be billed.

Bottom line:  As of 1/1/13, Massachusetts lawyers will be required to put most fee agreements/arrangements in writing.  The rationale underlying this requirement that fee and expense arrangements be in writing is to avoid disputes between the lawyer and client; however, the lack of a writing can also form the basis of a charge that the lawyer violated the Bar Rules.  Which state will be next?

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 Ethics, Bar rules fee agreements, joe corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer fee agreements, Lawyer written fee agreements

lllinois discipline board recommends that former criminal prosecutor who engaged in inappropriate conduct toward a minor defendant and minor victim in separate criminal cases be disbarred

Hello everyone and welcome to this Ethics Alert blog which will discuss very recent report and recommendation of an Illinois discipline board that a former criminal prosecutor who engaged in inappropriate conduct with a defendant and victim in separate criminal cases should be disbarred.  The case is In the Matter of Hunter Logan, Illinois Disciplinary Commission No. 2011PR00047 No. 6296751 (11/30/12).  The report and recommendation is  at: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10706.

According to the report and recommendation, the lawyer was admitted to practice law in Illinois in November 2008.  In February 2009, he began working as an assistant state attorney in Carroll County, assisting in the prosecution of misdemeanors and petty offenses.

In the first matter, before April 2, 2009, the lawyer was assigned to prosecute two cases involving K.I., a minor female. On March 9, 2009, K.I. entered a plea of guilty to the offense of minor drinking and was sentenced to 22 days incarceration with a 12 month period of conditional probation to follow.  K.I. was later arrested again and incarcerated in the county jail.  On October 21, 2009, the lawyer went to the jail and met with K.I. without being asked.  He discussed the new case and then asked her about her personal history.  K.I. told him that (among other things), she had a 37 year old boyfriend and was interested in photographic journalism.  K.I. also told the lawyer that she drank to intoxication almost daily, had experimented with controlled substance, and had poor relationships with her family.  This meeting lasted “a couple of” hours.

Between January 8, 2010 and January 14, 2010, the lawyer saw K.I. at the courthouse with her grandparents and she told him she was waiting to get admitted to a halfway house.  She also again told him about her interest in becoming a photographic journalist and the lawyer offered to lend her an old digital camera and told her to contact him about it.  About two weeks later, K.I. called the lawyer at the prosecutor’s office and they had a 25 to 40 minute personal conversation.  At the end of the conversation, the lawyer told K.I. that he would drop the camera off at her grandparents’ home.

On January 24, 2010, the lawyer drove to K.I.’s grandparents’ house where she was staying and asked her if she wanted to go with him to Wal-Mart.  K.I. testified that she thought his request was unusual because he was the prosecutor in her case, and she was afraid that if she did not go with him, he could create problems for her.  Before going to Wal-Mart, the lawyer stopped at Applebee’s restaurant.  A condition of K.I.’s probation on her first case was that she could not go to a restaurant that had a bar or be around alcohol and Applebee’s had a bar.  K.I. was also 19 years old and she had just completed an alcohol treatment program.  They were seated next to the bar, and the lawyer asked her if she wanted a drink.  She declined and thought the lawyer was trying to set her up or test her.

On the car ride back to her house, K.I. told the lawyer that she had “a crush on him forever” and he put his hand on her inner thigh and she “moved his hand away”.  The lawyer then tried to put his hand on her thigh a second time, K.I. moved it away again and told him to stop.  He then pulled into a gas station and when he got back into the car, he grabbed her chin and kissed her.  She pushed him away and he kissed her again.  He started to become agitated, and asked K.I. if they could go back to his apartment.  She said she wanted to go home, and he became more agitated.  K.I. then got out of the car and the lawyer agreed to drive her home and when she got home, she told her grandmother what had happened.

The following day, the lawyer sent four text messages to K.I., to which K.I. did not respond.  K.I. had no further contact with the lawyer and she showed the text messages to her probation officer. The probation officer then prepared and submitted a memo detailing the incident to the State’s Attorney and, on February 17, 2020, the State’s Attorney confronted the lawyer.  The lawyer did not deny the allegations or think he did anything wrong.  The State’s Attorney then told the lawyer he could no longer work for his office and the lawyer submitted his resignation on February 26, 2010.

In the second matter, a complaint was filed against A.F. in April 2009 charging him with violating a civil no contact order related to J.C., a minor female.  J.C.’s mother, Naomi, testified that A.F. physically and verbally abused J.C. and, as a result of that relationship, J.C. became emotionally unstable, attempted suicide and was admitted to an in-patient treatment program.  The lawyer met J.C. while prosecuting that case and, in June 2009, after additional investigation, the lawyer filed a two-count complaint charging A.F. with child pornography by photographing J.C. in several poses with her genitals exposed, with the intent to disseminate the photos.

After the charges were filed, J.C. developed a friendship with the lawyer and they saw each other once or twice a week.  He visited J.C.’s family at their home and the lawyer, J.C. and Naomi would also go out to eat.  By mid-July 2009, the lawyer asked State’s Attorney to remove him from the A.F. case because his impartiality in the matter had been questioned.  After discussing the matter with the lawyer, the State’s Attorney learned of the lawyer’s involvement with J.C., and told him to have no further contact with her or her family.

In late January 2010, after the lawyer was told to have no contact with her, J.C. went to the lawyer’s apartment.  At that time, J.C. was 17 years old and the lawyer was 34 years old.  The lawyer was lying down on the sofa on his side, and J.C. was lying down in front of him on her side.  The lawyer told J.C. he was having dirty thoughts, and began rubbing her side.  The lawyer then slipped his hand up J.C.’s blouse and touched her breast and she “panicked”, got up from the sofa, and said she had to go.  The lawyer grabbed her waist and asked her not to go and she then sat down next to the lawyer, kissed him, and left his apartment.  This was the only occasion that the lawyer had sexual contact with J.C.  The lawyer later told J.C.’s mother that he had kissed J.C. and she became angry and ordered him out of her house.

J.C. later testified that she trusted the lawyer and called him a “hero” on her MySpace page.  She also considered the lawyer to be her “knight in shining armor” because he was on her side in the A.F. matter when no one else was there for her.  After the lawyer left Carroll County in February 2010 (as a result of the K.I. incidents), J.C. thought he was a coward and she did not understand why he would leave her alone.  The lawyer did not explain why he left and J.C. had no contact with him after that.

On May 20, 2011, a two-count disciplinary complaint was filed against the lawyer and, on May 26, 2011, a first amended Complaint was filed, correcting an error in the original Complaint. The first amended Complaint alleged that the lawyer engaged in inappropriate conduct in the two above instances.  The first count alleged that the lawyer overreached his position of trust as a prosecutor when he engaged in the conduct related to minor defendant K.I.  The second count alleged that the lawyer engaged in an improper relationship with the minor victim J.C. and her family.

After conducting proceedings, the hearing panel recommended that the lawyer be found guilty of violating Illinois Bar Rules and that he be disbarred.  “We base this recommendation on the facts that Respondent was in a position of trust and authority, used that position to take advantage of vulnerable girls, and has demonstrated no acknowledgment of his misconduct.  We place substantial weight on Dr. Henry’s expert opinion that Respondent lacked an understanding of the relationship between an attorney and defendant or client, and that Respondent believed there was nothing wrong with the relationships he had with J.C. and K.I.  Most importantly, Dr. Henry concluded that without treatment, Respondent is at risk to engage in similar conduct in the future, especially with vulnerable and susceptible clients.  Given that attorneys meet and represent vulnerable and susceptible clients every day, Respondent is a threat to the community at large.  Accordingly, we find that the only way to protect the public from further misconduct is to disbar Respondent.”

Bottom line:  If the facts in the report are true, this prosecutor’s conduct is so wrong on so many levels.  What in the world could he have been thinking…or not thinking.

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, joe corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer criminal conduct, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Prosecutor criminal conduct, Prosecutorial misconduct ethics

New York lawyer resigns after admitting that she forged judges’ signatures on multiple witness subpoenas

Hello everyone and happy St. Nicholas Day!  Welcome to this Ethics Alert blog which will discuss recent resignation of a New York lawyer after she was charged with forging judge’s signatures on multiple witness subpoenas.  The case is Matter of Theresa Lizio, 2012 NY Slip Op. 08240 (11/29/12).  The opinion is online at: https://law.justia.com/cases/new-york/appellate-division-first-department/2012/4177.html

According to the opinion, the lawyer, who was employed by the New York City Department of Probation, appeared at a probation violation hearing on April 10, 2012 in the Brooklyn Supreme Court on behalf of the Department of Probation as the assigned attorney.  Two representatives of drug treatment programs appeared pursuant to subpoenas that they had received and questioned the validity of the subpoenas, which were purportedly signed by Supreme Court Judge Michael Brennan.

Supreme Court Judge Vincent Del Guidice (great name!) was presiding over the matter in Judge Brennan’s absence and “took possession of the subpoenas for further investigation”.  The City of New York Department of Investigation conducted an investigation and referred the matter to the Kings County District Attorney’s Office for potential criminal charges against the lawyer.  In exchange for a “non-criminal plea offer”, the lawyer agreed to resign from the practice of law in the State of New York.

The lawyer then filed an affidavit of resignation from the practice of law admitting that she improperly prepared the two subpoenas by signing Judge Brennan’s signature on one and printing his name on the other without that judge’s permission or authority.  The lawyer also admitted that she improperly issued judicial subpoenas in three other matters by printing the judges’ names without their permission or authority.  The lawyer admitted that she printed Judge Brennan’s name on the signature line on two subpoenas and she typed in Judge Matthew J. D’Emic’s name on the signature line in a third subpoena.  In her affidavit, the lawyer “acknowledges that if the Committee brought charges against her for the misconduct under investigation, she could not successfully defend herself on the merits.”

The opinion accepted the lawyer’s resignation and struck her name from the “roll of attorneys and counselors-at-law in the State of New York, nunc pro tunc to August 16, 2012.”

Bottom line:  In Florida, lawyers can sign their own subpoenas most of the time; however, signing or printing a judge’s name to any court document without permission is always the wrong thing to do…what was this lawyer thinking?

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, deceit, joe corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer criminal conduct, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misrepresentation, Lawyer resignation in lieu of discipline/disbarment, Lawyer sanctions