Monthly Archives: February 2013

Part 2 of a review of the comprehensive revised Florida lawyer advertising rules which become effective on May 1, 2013

Hello everyone and welcome to this Ethics Alert blog which is Part 2 of my brief review of the new Florida lawyer advertising rules which will become effective on May 1, 2013 at 12:01 am.  The Supreme Court of Florida’s opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf.

As I indicated in my previous Ethics Alerts, the opinion gave new numbers to the revised rules stating that the court was concerned that, without this modification “use of the same rule numbers could create confusion in case law for many years” since the new rules are “substantially different from the current rules.”

The revised advertising rules, as renumbered, are as follows:  Rule 4-7.11 (Application of Rules); 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.14 (Potentially Misleading Advertisements); 4-7.15 (Unduly Manipulative or Intrusive Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion); 4-7.18 (Direct Contact with Prospective Clients); 4-7.19 (Evaluation of Advertisements); 4-7.20 (Exemptions From the Filing and Review Requirement); 4-7.21 (Firm Names and Letterhead); 4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).

Rule 4-7.14 (Potentially Misleading Advertisements).  When they become effective, the Florida lawyer advertising rules will explicitly prohibit “potentially misleading” advertisements for the first time.  “Potentially misleading” advertisements will include (but are not necessarily limited to) the following:

1.         advertisements subject to “varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context”;

2.         advertisements that “are literally accurate, but could reasonably mislead a prospective client regarding a material fact” and;

3.         advertisements with references to “membership in or recognition by an entity that purports to base such membership or organization on a lawyer’s ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria” and draws from “a reasonable cross-section of the legal community the entity purports to cover.”

The Rule also states that an advertisement may be made permissible if “information or statements that adequately clarify the potentially misleading issue” are included with the advertisement.

Rule 4-7.15 (Unduly Manipulative or Intrusive Advertisements).  This Rule will prohibit advertisements that are “unduly manipulative or intrusive” and an advertisement is “unduly manipulative” if:

(a)       the advertisement has features designed to “solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to   represent the prospective client;”

(b)        the advertisement uses an “authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, to endorse or recommend the lawyer or act as  spokesperson for the lawyer;”

(c)        the advertisement uses the voice of image of a “celebrity” (except a local announcer who regularly records advertisements and does not endorse the advertiser); or

(d)        the advertisement “offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising” (discounted fees are specifically permitted).

The Rule and the Comment do not actually define the terms “intrusive” or “unduly intrusive.”  The term “authority figure” is also not defined, although the rule refers to “a judge or law enforcement officer, or an actor portraying an authority figure” as examples.  This would appear to give the Bar broad authority to interpret the parameters of these terms when prosecuting lawyers for alleged violations of the rules..

Bottom line:  As I previously stated, when the revised rules become effective on May 1, 2013, the Florida advertising rules will be some of the most comprehensive in the country, particularly related to social media and electronic communication, and will be a sea change with regard to lawyer advertising regulation 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 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers and social media

Illinois disciplinary commission files complaint against lawyer alleging, inter alia, that her public blogs were false and prejudicial to the administration of justice

Hello everyone and welcome to this Ethics Alert blog which will discuss the disciplinary Complaint that was recently filed by the Illinois Attorney Registration and Disciplinary Commission alleging that a lawyer’s blog posts were, inter alia, false, dishonest, deceitful, and prejudicial to the administration of justice.  The opinion is: In the Matter of Joanne Marie Dennison, No. 6192441, Commission No.2013PR00001 (January 8, 2013.  The disciplinary Complaint is at: https://www.iardc.org/13PR0001CM.html.

According to the Complaint, the lawyer started two blogs, one called, “marygsykes – An attorney blog concerning corruption and greed in the Probate Court of Cook County,” and the other called “marygsykes”, after a Cook County, Illinois Circuit Court judge disqualified her from continuing to serve as an attorney for the guardian of an individual named Mary Sykes.  The judge found that the lawyer had notarized the signatures of Sykes and her daughter on a document which provided a benefit to the daughter at a time when Sykes might have suffered from dementia.  Sykes’ daughter was the guardian and the lawyer’s client.

The Complaint also states that the lawyer’s public blogs described what she called the “sleazy world of probate” and states: “(w)hile the above case has a long, long history, much of which is documented on a blog to be found at http://www.marygsykes.com, the reality of the situation is that this probate proceeding boils down to garden variety theft, embezzlement, malpractice and malfeasance by attorneys and the court…” The lawyer’s blog also identified certain court-appointed guardians by name and initials and described them as “tortfeasors.”

Also according to the Complaint, “(t)he blogs were open to the public and were not password-protected.  (The lawyer) knew or should have known that the contents of her blogs were continuously available to anyone with access to the Internet.  (T)he lawyer has a purported disclaimer on her blogs, which included the following language:

Sorry, but portions of this blog have to be entertaining so we can get the word out.  There is most certainly a great deal of (stinging) truth in it, esp. for the GAL’s (sic), the probate court and a society that ignores (thereby condoning) the sleazy world of probate, and in particular the 18th floor of the Daley Center in Chicago, but everyone needs to understand, these are not pleadings, there is no Motion, Response and Reply set by any court, together with extended legal argument recorded by a court reporter and subject to a Motion to Reconsider if errors or new evidence is found.” 

Bottom line:  This is an example of the risk that lawyers take by making controversial public comments in the digital age.  In this case, the lawyer may firmly believe that she is providing a public service by blogging about alleged corruption in the probate practice in Cook County, Illinois; however, the Illinois disciplinary commission has seen the blogs and apparently does not agree.  Keep in mind that these the allegations have yet to be proven.  Stay tuned…

…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, Joseph Corsmeier, lawyer blogs, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism

Part 1 of a review of the comprehensive new revised Florida lawyer advertising rules which become effective on May 1, 2013

Hello everyone and welcome to this Ethics Alert blog which is Part 1 of my summary review of the new Florida lawyer advertising rules which will become effective on May 1, 2013 at 12:01 am.  The Supreme Court of Florida’s opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf.

As I indicated in my previous blog on the new rules, the opinion gave new numbers to the revised rules stating that the court was concerned that, without this modification “use of the same rule numbers could create confusion in case law for many years” since the new rules are “substantially different from the current rules.”

The revised advertising rules, as renumbered, are as follows:  Rule 4-7.11 (Application of Rules); 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.14 (Potentially Misleading Advertisements); 4-7.15 (Unduly Manipulative or Intrusive Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion); 4-7.18 (Direct Contact with Prospective Clients); 4-7.19 (Evaluation of Advertisements); 4-7.20 (Exemptions From the Filing and Review Requirement); 4-7.21 (Firm Names and Letterhead); 4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).

Rule 4-7.11 (Application of Rules).  This new rule states that the Florida lawyer advertising rules apply to “all forms of communication in any print or electronic forum” which includes “websites, social networking, and video sharing media.”  The previous rules (specifically Rule 4-7.6) stated that Florida lawyer websites were “information upon request” and exempt from the lawyer advertising rules.  The Comment to this new rule states that the Florida advertising rules do not apply “to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida.”

The new rule also states that the lawyer advertising rules apply to all lawyers, whether admitted in Florida or not, “who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents.”   Finally, the rule states that if the advertisements are in the “national media” (such as cable television), the rules do not apply “if the disclaimer ‘cases not accepted in Florida’ is plainly noted in the advertisement.”  As I have stated before, this is a significant change from the previous rules, which do not specifically indicate that they apply to all advertisements, and only address websites as an electronic forum and the current rule actually states that websites are not advertisements.

Rule 4-7.13 (Deceptive and Inherently Misleading Advertisements).  This new rule addresses deceptive or inherently misleading advertisements and provides a non-exclusive list of deceptive or inherently misleading statements, which include references to past results, comparisons of a lawyer’s skills, reputation, and record, and testimonials if the advertisements are not in compliance with the restrictions in the rule.  This new rule is a significant change from the current rules which prohibit testimonials and references to past results.

1.  References to past results will be permitted if “objectively verifiable.”  The Comment states that the affected client must give informed consent (full disclosure and waiver in writing) to the disclosure of results, even where “some or all of the information a lawyer may wish to advertise is in the public record.”

2.  Comparisons or characterizations of the advertiser’s “skills, experience, reputation or record” will be permitted if “objectively verifiable.”

3. Testimonials will be permitted; however, certain testimonials will not be permitted, including:  (a) matters on which the person making the testimonial is unqualified to evaluate; (b) if the experience in the testimonial is not the actual experience of the person making the testimonial; (b) if the testimonial is not representative of what clients of that lawyer or law firm generally experience; (d) a testimonial that has been written or drafted by the lawyer; (e) a testimonial in exchange for which the person making the testimonial has been given something of value; and/or (f) a testimonial that does not include the disclaimer that the prospective client may not obtain the same or similar results.  The Comment states that a “testimonial” is “a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation.”

Bottom line:  When the revised rules become effective on May 1, 2013, they will be some of the most comprehensive advertisement rules in the country, particularly related to social media and electronic communication, and will be a sea change with regard to lawyer advertising regulation in Florida.  Stay tuned…

…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 Ethics, Florida Lawyer advertising rules, Florida lawyer cloud computing, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers and social media

Illinois Disciplinary Commission Hearing Board reprimands lawyer for e-file confidentiality breach and failing to supervise non-lawyer staff

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Illinois Attorney Registration and Disciplinary Commission Hearing Board reprimanding a lawyer for e-file confidentiality breach and failing to supervise his non-lawyer staff.  The opinion is In the Matter of: John A. Goudge, No. 1024426, Commission No. 2012PR00085.  The opinion is at: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10819.

According to the opinion, the lawyer was an associate at a law firm in Chicago, Illinois and was responsible for all cases arising from a contract the law firm had with the United States Department of Justice to represent the federal government in debt collection cases involving student loans.

In July and August 2011, one the lawyer’s several non-lawyer assistants prepared complaints and corresponding exhibits alleging that defendants were indebted to the United States for failure to pay student loans pursuant to the lawyer’s instructions and direction.  At the lawyer’s direction and on his instructions, several of his non-lawyer assistants logged on to the U.S. District Court for the Northern District of Illinois’ Case Management/Electronic Case File (CM/ECF) system to file the complaints and exhibits.

The non-lawyer assistant was required to check a box in the CM/ECF system which stated that the filings were in compliance with Rule 5.2(a) of the Federal Rules of Civil Procedure, which requires that personal identifying information be redacted from all filings.  The box was checked; however, the exhibits included loan documents that had personal identifying information, such as social security number, date of birth, and account numbers. In numerous complaints and exhibits, defendants’ personal identifying information was not redacted; therefore, the confidential information became available to the public and viewable on the court’s website.

The lawyer stipulated that he failed to make reasonable efforts to supervise the non-lawyer and the process of redacting the confidential information.  The Board found in mitigation that the lawyer had been licensed to practice law in Illinois since October 29, 1977, had no prior discipline, cooperated during the investigation and disciplinary proceedings, and expressed remorse for his conduct and reprimanded the lawyer.

Bottom line:  Electronic filing of court documents is here and every lawyer must take steps to insure that confidential information is not included with court  pleadings and documents, whether in state of federal court.

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, joe corsmeier, Lawyer discipline e-filing confidentiality breach, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer supervision of non-lawyers

Wisconsin Supreme Court opinion revokes lawyer’s license to practice and agrees with referee that he “failed to perform as a responsible attorney” when representing himself in the Bar disciplinary matter

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Wisconsin opinion revoking a lawyer’s license for multiple Bar Rule violations and criticizing his pro se representation of himself in the disciplinary matter.  The opinion is In the Matter of Disciplinary Proceedings Against Donald A. Hahnfeld, Case No. 2011AP1570-D (Wisc. Sup. Ct. 1/30/13), which is online at: http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=92284.

The opinion stated that the lawyer had a lengthy disciplinary history and summarized the lawyer’s misconduct as follows:  “(the lawyer’s) return to the disciplinary process on multiple occasions with the same problems indicated a failure to grasp or adhere to the standards that are required of attorneys practicing in this state and a lack of remorse for his prior ethical violations.  The lack of acceptance of responsibility and lack of remorse was also demonstrated (the lawyer’s) attempts to blame (the client) and his associate attorney for the delay in filing the new civil action.”

“(The lawyer) also claimed that (the client) was withholding documents from him because he delivered more than two boxes of file documents to (the client) upon termination of the representation.  The referee, however, found more credible the testimony of (the client) and his significant other that (the lawyer) had provided only two boxes of documents that purportedly represented the sum of (the lawyer’s) file on (the client’s) representation.

“We note that this is the fifth disciplinary proceeding against (the lawyer), and that he has now been disciplined for the same types of misconduct on multiple occasions.  He has therefore demonstrated that he is unable to conform his conduct to the rules of professional conduct for attorneys in this state.  As the referee noted, even when representing himself in this proceeding with his license status at issue, he failed to perform as a responsible attorney, ignoring the need to develop a defense substantiated by documentary evidence, to appear for court proceedings, and to file briefs, exhibit lists, etc., as requested by the referee.” 

“Moreover, of great importance to our determination is the referee’s finding that (the lawyer) took $58,000.00 of his client’s money and produced no benefit for the client.  Indeed, he converted $28,000 of his client’s money to his own personal uses without his client’s knowledge.  He has therefore demonstrated that he is not currently fit to hold a license to practice law in this state and to represent members of the public in important legal matters.”  The court revoked the lawyer’s license to practice in Wisconsin effective as of the date of the opinion and ordered him to pay costs and restitution.

Bottom line:  This case seems to be an apparent twist on an old cliché.  “A person who represents him or herself…”   You know the rest…

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

Leave a comment

Filed under Attorney discipline, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of competence, Lawyer lack of diligence