Monthly Archives: March 2013

Wisconsin Supreme Court agrees with referee and rejects disciplinary charges related to alleged improper reimbursement of ABA expenses

Hello everyone and welcome to this Ethics Alert which will discuss the recent Wisconsin Supreme Court opinion approving a referee’s report rejecting the imposition of discipline on a lawyer who allegedly sent “compound” (duplicate) reimbursement requests to the ABA.  The case is In the Matter of Disciplinary Proceedings Against Richard J. Podell, Attorney at Law: Office of Lawyer Regulation v.  Richard J. Podell, 2012AP371-D (March 22, 2013).  The opinion is attached and is at: http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=94426.

The opinion states that the lawyer was admitted to practice law in Wisconsin in 1969 and had never previously been disciplined.  He was also a “longtime active member of the ABA, serving on numerous committees and holding numerous office positions.  He was a member of the House of Delegates, was past-Chair of the Family Law Section, was Chair of the Individual Rights and Responsibilities Section, and also served as budget officer of the Senior Lawyers Division.  The lawyer also frequently attended ABA section meetings and ABA House of Delegates meetings and submitted requests for financial reimbursement to different ABA sections.”

According to the disciplinary complaint, the lawyer personally submitted three expense reimbursement claims to the ABA requesting a total of $2,371.50 following the 2010 ABA midyear meeting in Orlando, Florida.  The lawyer subsequently received a letter from the ABA advising him he had sent “compound” (duplicate) reimbursement requests and the ABA conducted an audit of his ABA reimbursement requests for the years 2007, 2008, and 2009.  The audit showed that the lawyer submitted duplicate requests for expense reimbursement to various ABA departments for those years and that the total overpayment by the ABA was $1,155.80.  The ABA reimbursement was resolved to the satisfaction of the ABA; however, a Tennessee attorney conducted his own review and pursued the charges with the Wisconsin Bar authorities.

The disciplinary matter was referred to a referee who recommended that the lawyer be found not guilty of the all charges.  The referee’s report stated:  “(w)atching (the Tennessee lawyer) testify and considering the number of people within the ABA who now were aware of this matter; considering (the Tennessee lawyer’s) rush to judgment that (the lawyer) was guilty of dishonesty from the very outset; considering (the Tennessee lawyer’s) obsession that (the lawyer) should self-report this to OLR despite advice from others; considering that phone conversations with his so-called ‘friend’ were silently being listened to by a notekeeper or ABA staff; this referee is reminded of the old adage that with friends like this, who needs enemies.”

According to the opinion, the lawyer “admitted that he did not send the reimbursement requests to the ABA in an appropriate manner.  He expressed embarrassment and regret, repaid the ABA the amounts calculated as owed, claimed that he often failed to request reimbursement for ABA-related expenses and, had he done so, the ABA would have had to pay him considerable sums of money, and that he would not submit any further requests for ABA reimbursement.  He immediately sought to rectify his mistake.”  The opinion also noted that the ABA’s reimbursement policies were confusing, that the lawyer had a reputation for honesty, that he had no prior discipline, and that he paid restitution when the matter was brought to his attention.  The opinion agreed with the referee and found the lawyer not guilty.

Bottom line:  This is a somewhat bizarre lawyer discipline case.  First, it involved alleged false requests for reimbursement of expenses to a private entity (ABA) which were resolved with that entity, second, it involved a lawyer who was very involved with the ABA, including membership in the House of Delegates, and third, the Bar disciplinary matter was pursued by lawyer from Tennessee who had no official affiliation with the ABA who had apparently an “obsession that (the lawyer) should self-report” the conduct.

Be careful out there (and be especially careful with your expense reimbursement requests)!

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 discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer expense reimbursement, Lawyer sanctions

Illinois Disciplinary Review Board recommends that lawyer receive 30 day suspension for making false and/or misleading statements on blog post and for misconduct in closing argument

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Illinois Disciplinary Review Board’s Report and Recommendation that a lawyer be suspended for 30 days for making false or misleading statements about her disciplinary record on a public blog post and engaging in misconduct in closing arguments as a prosecutor in criminal cases she was prosecuting.  The case is In the Matter of: Laura J. Morask, No. 6195102 (March 8, 2013).  The Report and Recommendation is at: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10840.

According to the Report, the lawyer was a twenty-year Cook County, Illinois criminal prosecutor who was running for judge.  She was charged with making false and misleading statements in an internet response/blog to a negative judicial evaluation which alleged that she had engaged in multiple improper closing arguments.  The lawyer stated, inter alia, that she had been “completely cleared” of the claims after a “full and complete hearing.”

The Report stated that, with regard to the underlying disciplinary investigation, “(i)n February 2006, a majority of the Inquiry Panel concluded that formal disciplinary proceedings were not warranted at that time. However, because the Panel was concerned that Respondent’s conduct during the trials in question may have been inconsistent with the requirements of the Rules, the panel sent a letter in which it “admonished” Respondent to review the Rules of Professional Conduct and to take steps to ensure that her future conduct was consistent with the Rules. The letter to Respondent ended by stating, “If the Panel receives evidence of similar conduct by (the lawyer) in the future, it may reopen this investigation for future review.”

The lawyer testified at the hearing before a disciplinary board that she “sincerely believed the truth” of what she wrote and was irrational and sleep-deprived due to the rigors of the campaign.  The disciplinary board found that the lawyer violated Illinois Bar Rule 7.1 by making misleading statements in a blog post; however, it also found she did not have an intent to deceive when she made the statements.

The Report further stated:

“(t)he (lawyer’s) act in drafting and sending the e-mail for publication was an intentional and deliberate act.  Respondent’s e-mail was undisputedly intended to blunt the criticism of her conduct in the CCL (Chicago Council of Lawyers) evaluation.  Respondent’s actions may have been ‘in haste’ but were not inadvertent: she had three days to craft her 700 plus word response to the blog post and the CCL evaluation. At the time she drafted her response, she should have known and could easily have known that she had not been exonerated by the ARDC, contrary to the impression she created in the response. While she may have been “upset” and “sleep deprived” as she has claimed, she clearly had the presence of mind to research the Code of Judicial Conduct and to describe in some detail the very cases that were the subject of the ARDC Inquiry Board proceedings, yet she did not take the obvious and simple step of looking at her own letters from the ARDC which were clear and unambiguous…(t)he effect of the e-mail was deceitful and…violated Rule 8.4(a)(4).  Her beliefs, even if sincere, that she had a full hearing before the Inquiry Board, that she had been exonerated, that the public could learn the outcome of the ARDC’s investigation, and that she did not believe her statements were deceptive to readers of the blog, were ‘entirely unreasonable’. (citation omitted). Those ‘beliefs’…simply ignored unpleasant facts that were clear as day and readily available. Both Respondents chose to recklessly shut their eyes and engage in the sort of wishful thinking that would allow them to accomplish ends which would not be possible if they had verified easily verifiable facts. In so doing they violated Rule 8.4(a)(4).

The Report concluded that, “as a matter of law”, the lawyer violated the Illinois Bar Rules “by reason of her purposeful conduct in disseminating false and misleading statements and her utter disregard for the truthfulness of those statements, the effect of which was to perpetrate a fraud upon the public.  Where, as here, Respondent failed to take the simple step of verifying facts which were at all times in her possession, the fact that Respondent may have convinced herself that she was correct does not alter the underlying dishonesty because her belief, even if sincere, was entirely unreasonable.”

The hearing board found that lawyer did not make improper statements in closing arguments in three felony criminal cases and recommended that those allegations be dismissed and that the lawyer be reprimanded only for the false and misleading statements on the blog post; however, the Report found that the hearing board erred in that finding and recommended that the lawyer be found guilty of violating Bar Rules for both the false and misleading blog statements and improper closing arguments and that she be suspended from practice for thirty (30) days.

Bottom line:  This is yet another example of a lawyer who may ultimately be disciplined for statements made on public blog post.  This time it was an alleged false response to what the lawyer apparently believed was an unfair evaluation of her qualifications while she was running for election as a judge in Cook County, Illinois.

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 false statements, Lawyer sanctions, Prosecutorial misconduct ethics

Part 4 of a brief 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 the next installment 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 Ethics Alert on the new advertising rules, the Court’s opinion renumbered 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).  This review will discuss new rules 4-7.20, 4-7.22, and 4-7.23.

Rule 4-7.20 (Exemptions From the Filing and Review Requirement).  The exemptions from the filing and review requirement will be substantially unchanged and a “written or recorded communication requested by a prospective client” will continue to be exempt from filing; however, even though the communication is exempt from filing, the content of the communication requested from the prospective client will be subject to all of the advertising rules.  This is a significant change from the current rules, which state that the advertising rules do not apply to such requested information.  In addition, the rule provides that websites are exempt from the filing and review requirement.

Rule 4-7.22 (Lawyer Referral Services).  This rule will require all lawyer referral service advertisements to affirmatively state “lawyers who accept referrals from (the referral service) pay to participate in the lawyer referral service.”  This disclosure will be in addition to the affirmative “lawyer referral service” disclosure that is currently required.

Rule 4-7.23 (Lawyer Directory).  This new rule addresses “lawyer directories” for the first time.  A “lawyer directory” is defined as “(a)ny person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers.”  Telephone directories and voluntary bar associations which list members on a website or in a publication are not within the definition and there is no requirement for lawyers listed in a “lawyer directory” to be covered by malpractice insurance or that a “lawyer directory” provide the Florida Bar with a list of participating lawyers.

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 2013 Florida comprehensive advertising rule revisions, Florida 2013 comprehensive lawyer advertising rules, Florida 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

Virginia Supreme Court rules that Virginia Bar cannot prosecute lawyer who named clients and discussed cases on public blog without their permission but can require a disclaimer

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Virginia Supreme Court opinion which ruled that the Virginia State Bar cannot prosecute a lawyer for naming clients in a public blog; however, the Virginia Bar Rules can require a lawyer to place an advertising disclaimer on a blog originating from the lawyer’s website.  The opinion is Horace Frazier Hunter v. Virginia State Bar, Record No. 121472 (February 28, 2013).  The opinion is at http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf.

According to the majority opinion, the lawyer “authors a trademarked blog titled ‘This Week in Richmond Criminal Defense’, which is accessible from his law firm’s website….  The blog, which is not interactive, contains posts discussing a myriad of legal issues and cases, although the overwhelming majority are posts about cases in which Hunter obtained favorable results for his clients.  Nowhere in these posts or on his website did (the lawyer) include disclaimers.”

The Virginia Bar presented evidence that the lawyer posted 25 discussions about specific cases and 5 discussions about legal issues on his blog.  In 22 of the cases that were discussed, the lawyer had represented the criminal defendant and had obtained favorable results.  The blog did not include a disclaimer stating that the results were not intended to suggest that he would obtain similar results in other cases, which was required for advertisements under the Virginia Bar Rules.  The lawyer testified that he believed it was important to name his clients to give an accurate description of the case, and that he did not believe it was necessary to obtain their permission since the cases were a matter of public record.  He also acknowledged that marketing was one of the reasons for his blog.

The Virginia Bar argued that the lawyer revealed confidential information that could be embarrassing and/or potentially injurious to the clients and therefore, the content of the blogs revealed confidential information and violated the Bar Rules if the lawyer did not obtain the client’s consent or an exception applied.  The opinion disagreed and found that the information in the lawyer’s blog was a matter of public record and stated that “(t)o the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections…in that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

The opinion upheld the advertising disclaimer requirement of the Virginia Bar Rules stating that the posts were commercial speech and had the potential to be misleading, the Virginia Bar had a substantial governmental interest in protecting the public from potentially misleading attorney advertising and, as a result, the disclaimer requirement does not violate the First Amendment.  The opinion contrasted the commercial nature of the lawyer’s blog with other legal blogs noting that the lawyer’s blog is posted at his law firm’s website, in contrast to blogs which are published on a website other than the lawyer’s website and which allow commentary.  “Instead, in furtherance of his commercial pursuit, (the lawyer) invites the reader to ‘contact us’ the same way one seeking legal representation would contact the firm through the website.”

A strong dissent by one of the justices stated that the blogs were political speech, that heightened scrutiny should be applied, and that the Virginia Bar Rules could not require the disclaimer under these facts.

Bottom line:  In Virginia, at least, it appears that lawyers are permitted name clients and provide information that is “public record” in their public blogs.  Other state Bar rules (including Florida) prohibit lawyers from revealing confidential client information, even if it is a matter of public record.

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 advertising, Lawyer advertising rules, lawyer blogs, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers and social media

Part 3 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 the next installment 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 attached and is also at: http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf.

As I indicated in my previous Ethics Alert on these new rules, the Florida Supreme Court gave new numbers to the revised rules stating that it 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).  This review will discuss new rules 4-7.17, 4-7.18, and 4-7.19

Rule 4-7.17 (Payment for Advertising and Promotion).  This rule will continue to prohibit a lawyer from paying the costs of advertisements of a lawyer not in the same firm (however, the Comment notes that firms may advertise jointly if all required information is included) and giving anything of value in exchange for a recommendation of the lawyer’s services.  The rule has a new subdivision (c) which states:  “A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer.”

Rule 4-7.18 (Direct Contact with Prospective Clients).  This rule will continue to prohibit in-person solicitation; however, the prohibition against direct mail communication, including e-mail, with prospective clients is broadened to include all written communications from lawyer seeking professional employment, not just the “unsolicited communications” referred to in the current rule.  Another significant change to the rule will be that the word “Advertisement” must appear on each page of the communication (instead of only the first page).

Rule 4-7.19 (Evaluation of Advertisements).  This rule will require all advertisements (except websites) to be filed with the Bar 20 days before their first public dissemination.  The current rule requires only television and radio advertisements to be pre-filed.  The rule will also specifically prohibit the filing of “an entire website” for review; however, a lawyer “may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website”.

The rule also states that if the Bar does not send any communication to the filer within 15 days of receipt of a complete filing, or within 15 days of receipt of additional information when requested within the initial 15 days, the lawyer will not be subject to discipline by The Florida Bar; however, if the Bar later notifies the lawyer of noncompliance, the lawyer may be subject to discipline for dissemination of the advertisement after the notice of noncompliance.

The current rules state that the Bar’s finding that an advertisement is in compliance is binding on the Bar in future disciplinary proceedings unless there has been a misrepresentation not apparent from the face of the advertisement; however, the new rules will allow the Bar to change a finding of compliance to noncompliance without providing any justification.  New Rule 4-7.19(b) states as follows:  “The Florida Bar has a right to change its finding of compliance and in such circumstances must notify the lawyer of the finding of noncompliance, after which the lawyer may be subject to discipline for continuing to disseminate the advertisement.”  Interestingly, the Comment to the rule was not changed and still states that “(a) lawyer who files an advertisement and obtains a notice of compliance is therefore immune from grievance liability unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement.”

Finally, new rule 4-7.19(f)(5) will provide a safe harbor period which will allow a lawyer to “take down” a website (or portions thereof) and not be subject to discipline for a non-complying until 15 days after the Bar sends notice of non-compliance to the lawyer’s record Bar address.  The rule states that  “dissemination of portions of a lawyer’s Internet website(s) that are not in compliance with rules 4-7.14 and 4-7.15 only after 15 days have elapsed since the date of The Florida Bar’s notice of noncompliance sent to the lawyer’s official bar address.”

Bottom line:  As I have previously stated, 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

 

Leave a comment

Filed under 2013 Florida comprehensive advertising rule revisions, Florida 2013 comprehensive lawyer advertising rules, Florida 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