Monthly Archives: June 2013

Florida Supreme Court increases referee’s recommended discipline for multiple Bar Rule violations from 91 day suspension to disbarment

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida increasing the referee’s recommended discipline from a 91 day suspension to disbarment.  The opinion is The Florida Bar v. Swann, SC11-836 (June 20, 2013).  The opinion is attached and is also here: http://www.floridasupremecourt.org/decisions/2013/sc11-836.pdf

According to the opinion, in April 2011, The Florida Bar filed a five-count complaint against the lawyer, alleging that he engaged in misconduct in violation of several of the Rules Regulating the Florida Bar.  A referee was appointed to consider the matter and, following the final hearing, submitted his report with findings and recommendations to the Court.  The report found numerous Bar Rule violations on all five counts and recommended a 91 day suspension.  The report found that the lawyer engaged in dishonest and deceitful conduct, took improper advantage of his mother in serving as personal representative of his late father’s estate, concealed assets in his divorce and was involved with his girlfriend to take advantage of an elderly and vulnerable client.  The opinion states:

“In this case, (the lawyer)’s various acts of misconduct must be considered together as a whole.  (The lawyer) engaged in twenty-six separate rule violations, spanning a period of several years.  Some of his conduct, especially his involvement with Ms. Rhoualmi to exploit his client, Mr. Shelton, is particularly serious.  (The lawyer)’s extensive and egregious misdeeds warrant a more severe sanction than the ninety-one-day suspension recommended by the referee.

“Moreover, every count described in the referee’s report involves some instance of (the lawyer)’s dishonest and deceitful conduct. Our prior decisions have made clear that basic fundamental dishonesty is a serious flaw, one which cannot be tolerated by a profession that relies on the truthfulness of its members.  Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002); Fla. Bar v. Korones, 752 So. 2d 586, 591 (Fla. 2000).  We conclude that (the lawyer)’s numerous acts of dishonest conduct, together with his other serious ethical violations, warrant disbarment

“Finally, the fact that much of the misconduct in this case involves (the lawyer)’s personal affairs does not change our conclusion that disbarment is warranted. This Court has long held that ethical violations which occur while a member of The Florida Bar is not acting as an attorney can nonetheless subject the attorney to disciplinary proceedings. 

 

As this Court has stated before, “an attorney is an attorney is an attorney.” Even in personal transactions and when not acting as an attorney, attorneys must avoid tarnishing the professional image or damaging the public. . . . The practice of law is a privilege which carries with it responsibilities as well as rights. That an attorney might, as it were, wear different hats at different times does not mean that professional ethics can be “checked at the door” or that unethical or unprofessional conduct by a member of the legal profession can be tolerated.  

 

Fla. Bar v. Della-Donna, 583 So. 2d 307, 310 (Fla. 1989) (citations and internal quotation marks omitted).  “This Court has previously imposed lengthy suspensions or disbarment when attorneys engage in dishonest conduct in their personal matters. See, e.g., Fla. Bar v. Draughon, 94 So. 3d 566, 571 (Fla. 2012) (suspending an attorney for one year for defrauding the former property owner in a real estate transaction) (‘Although Draughon was acting on behalf of his own corporation, and not as a lawyer representing a client in a transaction, he is nonetheless a member of The Florida Bar and subject to the disciplinary authority of this Court. The Court expects members of the Bar to conduct their personal business affairs with honesty and in accordance with the law.’) (citation and internal quotation marks omitted); Fla. Bar v. Hall, 49 So. 3d 1254 (Fla. 2010) (disbarring an attorney for harassing property owners who refused the attorney’s offer to buy their property and creating a false agreement for sale). In Hall, the Court expressly noted that Hall ‘purposefully used her knowledge of the law to harm others, for her own personal benefit.’ Id. at 1258. Similarly, in this case, we conclude that Swann used his knowledge of the law to manipulate others.”

“Ultimately, based upon (the lawyer’s) numerous acts of dishonest conduct, Ultimately, based upon Swann’s numerous acts of dishonest conduct, together with the aggravating2 and mitigating factors found by the referee, we conclude that disbarment is warranted. Thus, we disapprove the referee’s recommended sanction, a ninety-one-day suspension, and instead disbar (the lawyer).”  

Bottom line: This is another example of the Florida Supreme Court not hesitating to increase the discipline recommended by the referee assigned to the Bar disciplinary case, in this case from a 91 day suspension (which is the minimum for a rehabilitative suspension requiring reinstatement) to disbarment, which was requested by The Florida Bar.

Be careful out there!

Disclaimer:  this blog 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 misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer misrepresentation, Lawyer sanctions

Florida Supreme Court increases referee’s recommended discipline for multiple Bar Rule violations from 91 day suspension to disbarment

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida increasing the referee’s recommended discipline from a 91 day suspension to disbarment.  The opinion is The Florida Bar v. Swann, SC11-836 (June 20, 2013).  The opinion is attached and is also here: http://www.floridasupremecourt.org/decisions/2013/sc11-836.pdf

According to the opinion, in April 2011, The Florida Bar filed a five-count complaint against the lawyer, alleging that he engaged in misconduct in violation of several of the Rules Regulating the Florida Bar.  A referee was appointed to consider the matter and, following the final hearing, submitted his report with findings and recommendations to the Court.  The report found numerous Bar Rule violations on all five counts and recommended a 91 day suspension.  The report found that the lawyer engaged in dishonest and deceitful conduct, took improper advantage of his mother in serving as personal representative of his late father’s estate, concealed assets in his divorce and was involved with his girlfriend to take advantage of an elderly and vulnerable client.  The opinion states:

“In this case, (the lawyer)’s various acts of misconduct must be considered together as a whole.  (The lawyer) engaged in twenty-six separate rule violations, spanning a period of several years.  Some of his conduct, especially his involvement with Ms. Rhoualmi to exploit his client, Mr. Shelton, is particularly serious.  (The lawyer)’s extensive and egregious misdeeds warrant a more severe sanction than the ninety-one-day suspension recommended by the referee.

“Moreover, every count described in the referee’s report involves some instance of (the lawyer)’s dishonest and deceitful conduct. Our prior decisions have made clear that basic fundamental dishonesty is a serious flaw, one which cannot be tolerated by a profession that relies on the truthfulness of its members.  Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002); Fla. Bar v. Korones, 752 So. 2d 586, 591 (Fla. 2000).  We conclude that (the lawyer)’s numerous acts of dishonest conduct, together with his other serious ethical violations, warrant disbarment

“Finally, the fact that much of the misconduct in this case involves (the lawyer)’s personal affairs does not change our conclusion that disbarment is warranted. This Court has long held that ethical violations which occur while a member of The Florida Bar is not acting as an attorney can nonetheless subject the attorney to disciplinary proceedings. 

 

As this Court has stated before, “an attorney is an attorney is an attorney.” Even in personal transactions and when not acting as an attorney, attorneys must avoid tarnishing the professional image or damaging the public. . . . The practice of law is a privilege which carries with it responsibilities as well as rights. That an attorney might, as it were, wear different hats at different times does not mean that professional ethics can be “checked at the door” or that unethical or unprofessional conduct by a member of the legal profession can be tolerated.  

 

Fla. Bar v. Della-Donna, 583 So. 2d 307, 310 (Fla. 1989) (citations and internal quotation marks omitted).  “This Court has previously imposed lengthy suspensions or disbarment when attorneys engage in dishonest conduct in their personal matters. See, e.g., Fla. Bar v. Draughon, 94 So. 3d 566, 571 (Fla. 2012) (suspending an attorney for one year for defrauding the former property owner in a real estate transaction) (‘Although Draughon was acting on behalf of his own corporation, and not as a lawyer representing a client in a transaction, he is nonetheless a member of The Florida Bar and subject to the disciplinary authority of this Court. The Court expects members of the Bar to conduct their personal business affairs with honesty and in accordance with the law.’) (citation and internal quotation marks omitted); Fla. Bar v. Hall, 49 So. 3d 1254 (Fla. 2010) (disbarring an attorney for harassing property owners who refused the attorney’s offer to buy their property and creating a false agreement for sale). In Hall, the Court expressly noted that Hall ‘purposefully used her knowledge of the law to harm others, for her own personal benefit.’ Id. at 1258. Similarly, in this case, we conclude that Swann used his knowledge of the law to manipulate others.”

“Ultimately, based upon (the lawyer’s) numerous acts of dishonest conduct, Ultimately, based upon Swann’s numerous acts of dishonest conduct, together with the aggravating2 and mitigating factors found by the referee, we conclude that disbarment is warranted. Thus, we disapprove the referee’s recommended sanction, a ninety-one-day suspension, and instead disbar (the lawyer).”  

Bottom line: This is another example of the Florida Supreme Court not hesitating to increase the discipline recommended by the referee assigned to the Bar disciplinary case, in this case from a 91 day suspension (which is the minimum for a rehabilitative suspension requiring reinstatement) to disbarment, which was requested by The Florida Bar.

Be careful out there!

Disclaimer:  this blog 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, fraud, joe corsmeier, Joseph Corsmeier, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer misrepresentation, Lawyer sanctions

Florida Supreme Court imposes 2 year suspension on former criminal prosecutor who had personal relationship with judge and contact while judge was presiding over his trial

Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida increasing the referee’s recommended discipline of former criminal prosecutor who had a personal relationship with circuit judge and extensive contact while that judge was presiding over his trial from a 1 year to a 2 year suspension.  The opinion is The Florida Bar v. Scheinberg, SC11-1185 (June 20, 2013) and is here: http://www.floridasupremecourt.org/decisions/2013/sc11-1865.pdf.  

According to the opinion, “(i)n 2007, Scheinberg was the lead prosecutor in State of Florida v. Omar Loureiro, a first-degree capital murder case in which the State was seeking the death penalty. Former Judge Ana Gardiner was the presiding judge in the case. On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder. Subsequently, on May 20, 2007, the jury recommended the death penalty; on August 24, 2007, former Judge Gardiner imposed the death penalty. During the period of time from March 23, 2007, four days before the jury returned its guilty verdict in Loureiro, to August 24, 2007, the day that former Judge Gardiner imposed the death penalty, Scheinberg and Gardiner engaged in substantial personal communications by phone or text message. Specifically, Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages during that period. Scheinberg did not disclose these communications to the attorney representing Loureiro.

“The referee found: ‘The undisclosed conduct between former Judge Ana Gardiner and the respondent, contributed to the decision by the State of Florida, through its Broward State Attorney to agree to a new trial in State of Florida v. Omar Loureiro to dispel any public misconception that there was any denial of due process.’ the referee recommends that Scheinberg be found guilty of violating Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). The referee observed: ‘The undisclosed communications between the judge and Respondent prejudiced the system. The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice.’”

“The referee found three aggravating factors in this case: a pattern of misconduct; multiple offenses; and substantial experience in the practice of law. The referee also found four mitigating factors: the absence of a prior disciplinary record; full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings; good character or reputation; and remorse.  As to the sanction, the referee recommends that Scheinberg be suspended from the practice of law for one year. The referee also awarded costs to The Florida Bar, in the amount of $3,881.96.”

“As we noted above, there is little case law from this Court that addresses the situation presented in this case, where an attorney engages in extensive personal communications with a presiding judge in a capital case, without disclosing those communications to the opposing party. The Report of Referee cites Florida Bar v. Mason, 334 So. 2d 1 (Fla. 1976), in which the Court suspended an attorney for one year for egregious ex parte communications with Justices of the Florida Supreme Court concerning a pending case. In Mason, the Court noted that the ex parte communications at issue were ‘fundamentally wrong,’ and that ‘there can be no temporizing with an offense the commission of which serves to destruct the judicial process.’”

“Here, there is no dispute that the communications between Scheinberg and former Judge Gardiner did not concern the Loureiro case. Nonetheless, we do find guidance in Mason, in that Scheinberg’s conduct similarly created an appearance of impropriety and caused harm to the judicial process. Scheinberg and Gardiner engaged in a substantial number of personal communications that were not disclosed to the opposing party and his attorney. Moreover, this conduct occurred in the context of a capital first-degree murder case where the judge had to rule on motions made by and against the respondent and where the judge could, and did, impose the ultimate sentence of death. The communications between Scheinberg and former Judge Gardiner led to an investigation and, ultimately, caused the Loureiro case to be retried, a process which consumed court resources, as well as the resources of opposing counsel. Given the seriousness of Scheinberg’s misconduct and the harm it caused to the administration of justice in the Loureiro case, together with the aggravating and mitigating factors found by the referee, we hold that a two-year suspension is the appropriate discipline. Thus, we disapprove the referee’s recommended sanction, and instead suspend Scheinberg for two years.”

Bottom line: This is a somewhat extreme example of extensive improper personal and certainly ex parte contact between a presiding judge and an attorney litigating a case, which was amplified by the fact that it was a criminal death penalty case.  It is also another example of the Florida Supreme Court not hesitating to increase the discipline recommended by the referee assigned to the Bar disciplinary case, which I have reviewed and discussed in previous Ethics Alerts and seminars.  The opinion is also highly is unusual since the Supreme Court significantly increased the discipline after the lawyer (not the Bar) filed a petition to review the recommended discipline.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.           

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

 

www.jac-law.com

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Florida judge ethics, Florida Judicial Canons, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Judicial ethics, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper ex parte contact with judge, Lawyer sanctions, Prosecutorial misconduct ethics

Illinois Hearing Board recommends 5 month suspension for lawyer who posted undercover video related to client on Youtube and alleged that the drugs were planted

Hello and welcome to this Ethics Alert blog which will discuss the recent report and recommendation of an Illinois disciplinary hearing board that an Illinois lawyer be suspended for 5 months for posting an undercover video of an alleged drug transaction of his client on Youtube and alleged that the drugs were planted.  The disciplinary case is In re Jesse Raymond Gilsdorf, Commission No. 2012PR00006 (June 4, 2013).  The disciplinary Complaint is here: https://www.iardc.org/12PR0006CM.html and the Board’s Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10978.    

According to the Report and Recommendation, “the charges of misconduct arose out of  the Respondent knowingly posting on an Internet site, and showing to others, a DVD video he received from the state’s attorney while representing a criminal  defendant.  The video showed the undercover drug transaction between Respondent’s  client and a confidential police source.  The Respondent entitled the video ‘Cops and Task Force Planting Drugs,’ which was false.  By posting the video while his client’s criminal case was pending, Respondent intended to persuade residents of the county that the police or other government officials acted improperly in the prosecution of his client.

The Hearing Board found that the Respondent engaged in the misconduct charged in both counts.  Specifically, he revealed information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation; failed to reasonably consult with the client about the  means by which the client’s objectives are to be accomplished); made extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding; engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.”

The report and recommendation of the hearing board will now be considered by the Illinois disciplinary review board and will ultimately be reviewed by the Illinois Supreme Court for a final disciplinary opinion.

Bottom line: This is another example of the use (or misuse) of social media potentially resulting in a lawyer’s discipline.  Lawyers must be aware of the requirement of maintaining client confidentiality and the risk of making statements that are false about a client’s case as well as the inherent dangers of using social media in the lawyer’s practice.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me. 

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer discipline social media misuse, Lawyer sanctions, Lawyers and social media, Lawyers and social media youtube, Privilege

Florida Bar’s Professional Ethics Committee will consider approval of Proposed Advisory Opinion 12-3 on cloud computing ethics at its meeting on June 28, 2013

Hello and welcome to this Ethics Alert blog with an update on the status of The Florida Bar’s Proposed  Advisory Opinion 12-3 on the ethics of cloud computing and protecting client confidences when lawyers want to store records in the digital “cloud” using third party vendors.  The Florida Bar’s Professional Ethics Committee (PEC) will consider approval of the proposed opinion at its June 28, 2013 meeting in Boca Raton in conjunction with The Florida Bar’s annual convention.  The proposed advisory opinion is also on the Bar’s website at: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/186D086CDDCBF92F85257B01007A5091/$FILE/12-03%20PAO.pdf?OpenElement

The opinion concludes that storing client confidential information and documents in the “cloud” is ethical with several important caveats.  “This Committee (PEC) agrees with the opinions issued by the states that have addressed the issue. Cloud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it. As indicated by other states that have addressed the issue, lawyers must perform due diligence in researching the outside service provider(s) to ensure that adequate safeguards exist to protect information stored by the service provider(s).  New York State Bar Ethics Opinion 842 suggests the following steps involve the appropriate due diligence:

 

Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;

 

Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;

 

Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.”

If proposed advisory opinion 12-3 is approved by the PEC, Florida will join at least 11 other states which have issued ethics opinions finding that cloud computing is ethical and providing guidelines for its use.  As I also previously advised, Florida Bar Advisory Ethics Opinion 10-2 also provides guidance to lawyers to insure that confidential client information on the hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.

Bottom line:  After ethics advisory opinion 12-3 is finalized, it will provide Florida lawyers with more specific guidance on the ethics of cloud computing.

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, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality and privilege, Florida lawyer cloud computing, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinion cloud computing, Lawyer ethics opinions

Supreme Court of Florida issues opinion implementing Code for Resolving Professionalism Complaints

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida implementing a Code for Resolving Professionalism Complaints.  The Florida Supreme Court’s opinion is In re: Code for Resolving Professionalism Complaints, No. SC13-688 (June 6, 2013) and is online at: http://www.floridasupremecourt.org/decisions/2013/sc13-688.pdf.  The new Code is appended to the Court’s opinion.

The Court’s opinion noted that the issue of civility/professionalism has been studied for many years (since at least 1989) and that the Supreme Court Commission on Professionalism had submitted a study concluding that “further integrated, affirmative, practical and active measures are now needed.”

The opinion also stated that “(o)ver the years, we have come to understand that professionalism or acceptable professional behavior is not simply a matter of character or principles nor is it simply an issue of rule following or rule violating.  To the contrary, unacceptable professional conduct and behavior is often a matter of choice or decision making. Therefore, we accept the proposal of the Professionalism Commission to create a structure for affirmatively addressing unacceptable professional conduct.  This first step admittedly contains small initial measures designed to firmly encourage better behavior.”

Bottom line:  As I have indicated in previous Ethics Alerts, the Florida Supreme Court has been very active in addressing the professionalism of Florida lawyers both in and out of Bar disciplinary matters and the implementation of this Code for Resolving Professionalism Complaints is a manifestation of those continued efforts.  In my experience, the reporting of professionalism complaints is very infrequent and circuit lawyer professionalism committees are vastly underutilized.  I would encourage Florida lawyers to consider using the professionalism committee as a step toward resolving such issues.

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 Florida Code for Resolving Professionalsim Complaints, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer Professionalism