Monthly Archives: May 2013

New York lawyers who convinced a client to falsify the facts of her injury and then covered it up are suspended for 9 months

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York Appellate Division opinion suspending two lawyers who convinced a client to falsify the facts underlying her injury and then covered it up when another lawyer was retained as co-counsel. The opinion is Matter of Rios (and Levy), 2013 NY Slip Op 03439 (App. Div. First Dept. May 14, 2013).  The New York disciplinary opinion is at http://www.nycourts.gov/reporter/3dseries/2013/2013_03439.htm. 

According to the (long and somewhat stilted) opinion, within a few months of opening their law firm in January 2008, the two lawyers were retained by a client who said she had been injured in a church sidewalk fall.  By May 2008, the lawyers apparently knew that the woman’s initial story would not establish a sufficient basis for a lawsuit and they decided to assist the client to manufacture a false story to support an alternative legal claim by “explaining” the law to her.         

The client then changed her story and the lawyers filed a lawsuit against a new defendant who owned a home across the street from the church.  After the litigation was in a trial posture, the lawyers realized that, due to their lack of prior experience, they were not prepared to try the case without assistance and they brought in another lawyer.  In order to prevent that lawyer from learning that the client changed her story, they removed documents from the file that showed that they had initially pursued a claim against the church.

The lawyers stipulated to the facts, admitted guilt on two of the three Bar rule violations, and presented evidence of their public and community service activities as mitigation.  A disciplinary hearing panel recommended that the lawyers be found guilty of all charges and be suspended for 9 months and the lawyers appealed.           

The appellate opinion affirmed the panel’s findings that the lawyers had violated all three Bar rules, including engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in conduct that adversely reflects on a lawyer’s fitness as an attorney, and taking on a legal matter that a lawyer knows or should know he or she not competent to handle without associating with a competent lawyer.

According to the opinion, “(b)ased on the record, it is clear that respondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception”.  “Thereafter, respondents, with full knowledge that they were perpetrating a fraud, commenced an action against an innocent third party, filing papers, such as pleadings, containing misrepresentations with the court.  Then, for a over a year, respondents continued to conduct discovery and attend court conferences with full knowledge that the action they were pursuing was based on a misrepresentation which they themselves influenced.

“When forced to retain trial counsel, respondents not only failed to apprise counsel that their client’s accident did not occur where she alleged, but in order to conceal their prior misconduct, they sanitized the case file, removing any evidence as to the accident’s actual situs. While respondents never expressly admitted that their behavior was motivated by financial gain, in a case where their legal fee would be determined by the amount they were able to recover for their client, it is clear that respondents engaged in the misconduct alleged and to which they admitted for financial gain and with venal intent.”

Bottom line:  This case is another example of lawyers who, apparently in pursuit of money, encouraged a client to make false statements regarding the facts of a claim.  In this case, the lawyers compounded their improper conduct by covering it up.  The misconduct was discovered when they found out that they were in over their heads and had to associate another lawyer with more experience.  

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, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of competence, Lawyer misrepresentation, Lawyer sanctions

Florida 2nd District Court of Appeal holds that in camera review is required before court can require privileged documents to be produced

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Florida Second District Court of Appeal granting a petition for writ of certiorari quashing a discovery order compelling the production of allegedly privileged documents without first conducting an in camera inspection todetermine whether the privilege applies. The opinion is Patrowicz v. Wolff, — So.3d —-, 2013 WL 1352488 (Fla. 2d DCA April 05, 2013).  The opinion is http://www.flprobatelitigation.com/uploads/file/2D12-5535.pdf

In this case, the lawyer was an estate planner for the decedent and counsel for the personal representative of the estate and was served with a subpoena for his records as the non-party estate planner, not as probate counsel.  The lawyer objected and the court ordered that the documents be produced without reviewing the documents in camera.  The lawyer filed a petition for writ of certiorari to the 2nd District Court of Appeal.

The 2nd DCA granted the petition and quashed the trial court’s order.  According to the opinion, which was authored by Judge Khouzam, “(a) trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari.” Bennett v. Berges, 84 So.3d 373, 374-75 (Fla. 4th DCA 2012). A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure. Id. at 375. This is equally true where the subpoena on its face requests communications between attorney and client. See Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002). The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law. See Snyder v. Value Rent–A–Car, 736 So.2d 780, 782 (Fla. 4th DCA 1999).”

“(T)he reason we must quash the order is that the trial court ordered production of the documents without first reviewing them and determining whether the attorney-client privilege applied. Not only did (the lawyer) specify that his objection was based on the attorney-client privilege, but the subpoena on its face explicitly requested communications between an attorney and his client. Consequently, the trial court was required to conduct an in camera inspection of the documents prior to ordering their disclosure. We therefore quash the order compelling the production of the documents and remand the case for further proceedings.”

In Bennett v. Berges, the 4th DCA stated that the trial court properly ordered an in camera review of the relevant documents claimed to be privileged; however, it denied the petition for writ of certiorari as premature.  “After an in camera inspection, the trial court may determine that the documents are privileged and uphold Petitioners’ objection to the discovery request. Accordingly, because the order requires a party to submit allegedly protected materials only for an in camera inspection, and the trial court may never require disclosure of the documents to the opposing party, we hold that the petition is premature (citing cases).  Whether the trial court has misapprehended the scope of the privilege is a question we need not decide because to date, no discovery has been ordered. Accordingly, the petition is denied.”

Bottom line:  If the lawyer does not believe that the confidential file should be provided, he or she should object to the subpoena and insist on an in camera review, which is required under Patrowicz v. Wolff.  The duties and obligations of an estate planning lawyer when the confidential file is subpoenaed in estate litigation are addressed in Florida Bar Advisory Ethics Opinion 10-3, which I have addressed in previous Ethics Alerts and in seminars.  The advisory opinion is attached and should be carefully examined and followed by any lawyer who may have to address this issue.

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, Client privileged documents in camera review, Confidentiality and privilege, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics

Kentucky Supreme Court opinion finds that lawyer did not disobey obligation to tribunal by ignoring judge’s warnings about his behavior

Hello everyone and welcome to this Ethics Alert which will discuss the recent Kentucky Supreme Court disciplinary opinion which held that a lawyer’s repeated disruptive behavior and refusal to abide by a judge’s “repeated warnings” to tone down his behavior did not violate the portion of the Kentucky Bar Rule which prohibits a lawyer from disobeying “an obligation under the rules of a tribunal” although it does violate other Bar Rules  The opinion is Kentucky Bar Ass’n v. Blum, Ky., No. 2012-SC-000825-KB (April 25, 2013).  The opinion is attached and is at http://op.bna.com/mopc.nsf/id/kswn-97fnd9/$File/Blum.pdf

According to opinion, the disciplinary charges arose out of the lawyer’s “nearly decade-long handling of a teacher termination dispute, which was litigated in various state and federal forums.”  The lawyer’s client was a high school teacher and part-time photographer who allegedly took inappropriate pictures of a female student.  The client was terminated after an administrative tribunal heard charges against him in 1996.  Several years later, a court “ordered the case remanded to the tribunal upon a finding that the instructions given to the tribunal by the hearing officer were erroneous and that additional mitigating factors should be considered in determining the penalty.”  The termination was ultimately upheld and the lawyer then filed an unsuccessful civil rights complaint in federal court.

Referring to the specific language in Kentucky Bar Rule 3.4(c), the opinion stated that an “(o)bligation under the rules of a tribunal’ means just that. It does not encompass violations of warnings, admonitions, or other statements made by a trial judge in an attempt to urge an attorney to conform his conduct to the recommended courtroom practice.”  The opinion also stated that “(t)he court speaks through its orders and (Rule) 3.4(c) is intended to discipline attorneys who do not comply.”

The opinion confirmed the scope of Kentucky Bar Rule 3.4(c) and stated that the rule applies only “where an attorney violates a court order, a rule of civil procedure or a local rule; fails to appear for a client or respond despite numerous requests for a response; or continues practicing after being suspended from the practice of law” and, although the lawyer “acted contrary to repeated warnings, admonitions, and directions” of the trial judge, he did not violate Rule 3.4(c).     

According to the opinion, even though the lawyer did not violate Kentucky Bar Rule 3.4(c) by disobeying an obligation of a tribunal, he did violate Kentucky Bar Rule 3.4(f) for “threatening to present disciplinary charges solely to obtain an advantage in his client’s case”; Bar Rule 3.5(c) for “making allegations that were unsubstantiated or unrelated to the case and by multiplying the proceedings unreasonably and vexatiously”; Bar Rule 3.1 for “pursuing [a] case based on unsubstantiated, frivolous, and baseless allegations”; and Rule 8.2(a) for alleging that administrative officials “conspired against” and attempted to “frame” his client by “rigg(ing)” his hearing.           

The opinion stated that, with regard to Rule 8.2(a) “(w)hen an attorney speaks during a judicial proceeding, as (the lawyer) did here through various motions and filings, he cannot seek refuge within (his) own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults which raise doubts as to a judge’s impartiality.’”   

The lawyer was suspended for “not less than 181 days” and required to attend an Ethics and Professionalism Enhancement Program at his own expense within 12 months of the Order, be evaluated by the Kentucky Lawyer’s Assistance Program within three months of the opinion and follow any and all treatment or counseling recommendations, and pay the costs of the disciplinary proceeding.

Bottom line:  This opinion addresses and clarifies the narrow scope of Kentucky Bar Rule 3.4(c) (which is substantially similar to Florida Bar Rule 4-3.4(c) and other state Bar Rules) and addresses how other Bar Rules may be violated when a lawyer engages in the litigation related conduct discussed in the opinion.

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 discipline, Lawyer disruptive litigation conduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, yer disobey order of tribunal

Bar Ethics Committee will decide whether to modify or withdraw Ethics Op. 87-4 which allows lawyers to offer 2 contracts to PI clients

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Notice in the April 30, 2013 issue of The Florida Bar News advising that the Bar’s Professional Ethics Committee (PEC) will consider whether to modify or withdraw current Florida Bar Ethics Opinion 87-4, which states that lawyers may offer personal injury clients a choice between two contingent fee contracts with differing percentage fees depending on whether the client or the lawyer will assume responsibility for submitting the client’s medical bills for payment as long as neither percentage exceeds the maximum allowed under the contingency fee requirements of the Rules Regulating The Florida Bar.  The Florida Bar’s Notice is at http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/39825807a56dd34185257b5500458f47!OpenDocument and Ethics Opinion 87-4 is at: http://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+87-4?opendocument

The PEC will consider whether to withdraw or modify Ethics Opinion 87-4 at its meeting at 2 pm on June 28, 2013 at the Boca Raton Resort & Club in conjunction with The Florida Bar Annual Convention.  The review of the Ethics Opinion for potential withdrawal or modification is in conjunction with the recent Notice that the Bar Board of Governors intends to take final action on proposed changes to the Florida Bar rules at its May 31, 2013 meeting in Sarasota.

The proposed Bar rule changes include proposed new Rule 4-1.5(f)(4)(E), which would prohibit a lawyer from charging any additional fee to the client for providing “ordinary lien resolution” and, if all fees for the personal injury matter plus lien resolution exceed the contingent fee schedule, “extraordinary services for subrogation and lien resolution” may be referred to another only with the client’s informed consent.  Further, any additional fees by the other lawyer must comply with all provisions of the fee rule and that the lawyer providing the extraordinary subrogation and lien resolution services may not divide fees with the lawyer handling the personal injury or wrongful death claim.  The Comment to the Rule “explains what lien resolution services are required as part of the original fee contract and what extraordinary services entail.”

Comments regarding the proposed modification or withdrawal can be directed to Elizabeth Tarbert, Bar Ethics Counsel in Tallahassee or by e-mail to the Bar Ethics Department at eto@flabar.org.

Bottom line:  This proposed Bar rule would impose (for the first time) a duty on Florida lawyers to provide “ordinary lien resolution” services in all personal injury and wrongful death matters.  If the proposed rule is implemented, one of the questions will be what is “ordinary lien resolution” and what constitutes “extraordinary services for subrogation and lien resolution”  As I have previously explained, if there are disputes regarding distribution of PI/wrongful death settlement funds, including disputes by third party lien holders, the lawyer can consider an interpleader action and placing the funds in the registry of the 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 Ethics, Bar rules fee agreements, Contingency fee agreements, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer fee agreements, Lawyer improper fees, Lien resolution

Recent Notice of Proposed Florida Bar Board of Governors Actions contains important potential changes to the Florida Bar Rules

Hello everyone and welcome to this Cinco de Mayo Ethics Alert which will discuss the recent Notice of Proposed Board Actions which has some important proposed amendments to the Florida Bar Rules.  The Notice is on page 4 of the 4/30/13 Florida Bar News and also: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/b30ead230120050a85257b550045a451!OpenDocument

            Pursuant to its Standing Policies, the Board of Governors of The Florida Bar recently published a notice of intent to take final action on proposed changes to the Florida Bar rules at its May 31, 2013 meeting in Sarasota. The proposed changes are governed by Rule 1-12.1, Rules Regulating The Florida Bar and most amendments to the Rules Regulating The Florida Bar must be filed with the Supreme Court of Florida after the board takes final action, with further notice and opportunity to be heard, before they are officially approved and become effective.

            The proposed changes include a revision to Rule 3-5.2 which would provide a mechanism for owners of trust account funds to assert ownership over the funds, a revision to Rule 3-5.3 which would make lawyers eligible for diversion for a different type of misconduct as long as the subsequent conduct more than one year after the diversion and shortens the time between diversions from 7 to 5 years, and a revision to Rule 4-1.5(f)(4) which would, inter alia, require a lawyer in a personal injury or wrongful death case charging a contingent fee to provide ordinary lien resolution as part of the lawyer’s representation of the client under the fee contract.

            The following are summaries of the above revisions in the Board Notice:

            RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM PROBATION OR INTERIM PLACEMENT ON THE INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT
Within subdivision (c) and new subdivisions (d) and (e), and renumbered subdivisions (h) and (k), proposed rule amendments provide a mechanism for owners of funds in a lawyer’s frozen trust account, to assert claims of ownership on these funds as part of the Bar’s referee procedures in suspension and emergency suspension cases through a referee or receiver. Remaining rule provisions are renumbered and additional non-substantive changes are made to conform to the Supreme Court style guide.

           RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS

            Within subdivision (c) and the comment, the proposed change allows bar members who have received a diversion to be eligible for a diversion for a different type of conduct, for which a diversion program exists, as long as the subsequent conduct occurred one year or more after the first diversion. Within subdivision (c) the proposed amendment also shortens the period between diversions for the same type of conduct from 7 years to 5 years.

            RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES

            Within Rule 4-1.5(f)(4), adds new subdivision (E) that the lawyer in a personal injury or wrongful death case charging a contingent fee must provide ordinary lien resolution as part of the lawyer’s representation of the client under the fee contract, that the lawyer may not charge any additional fee to the client for providing such services if all fees for the personal injury matter plus lien resolution exceed the contingent fee schedule, that extraordinary services for subrogation and lien resolution may be referred to another only with the client’s informed consent, that additional fees by the other lawyer must comply with all provisions of the fee rule, and that the lawyer providing the extraordinary subrogation and lien resolution services may not divide fees with the lawyer handling the personal injury or wrongful death claim. Within comment, explains what lien resolution services are required as part of the original fee contract and what extraordinary services entail.

            Bottom line:  The proposed Bar rule changes would clarify the right to trust funds when a lawyer is suspended on an emergency basis, broaden the eligibility of lawyers to receive a diversion, and clarify a lawyer’s duty to resolve liens in personal injury and wrongful death matters.  The proposed rule changes will be considered for final action by the Board of Governors at its May 31, 2013 meeting in Sarasota.  If approved, the rule changes will most likely be included in the next annual Bar rule revision petition filed by The Florida Bar in the fall.  If you want a full copy of the text of any of the proposed amendments, you can email the Bar Ethics Department at eto@flabar.org.

            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

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 Ethics, Bar rules fee agreements, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics