Monthly Archives: September 2013

Philadelphia ethics opinion states that former firm is permitted to review incoming e-mails of departed lawyer and must hold disputed funds in trust

Hello and welcome to this Ethics Alert blog which will discuss the recent Philadelphia Bar Association Ethics Opinion which states that a law firm can review incoming e-mails of former partner and is not required to program the e-mails to just be returned to senders and must also hold fee retainer funds which are disputed because of a separate agreement made by the departing lawyer and client to hold them for an expert.  The opinion is Philadelphia Bar Ass’n Prof. Guidance Comm., Op. 2013-4 (9/2013) and is here: http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion2013-4.pdf

The managing partner of a law firm requested an ethics opinion after disputes arose between the firm and a partner who left to start his own practice and took firm clients with him.

The first issue involved the law firm’s handling of the former partner’s e-mail.  When the lawyer left, the firm set up his e-mail account to send a reply to incoming e-mails that the lawyer is no longer with the firm. The firm established a procedure to read the e-mails and forward them to the former partner if they relate to a matter he took with him.  The former partner asked that the firm not read the e-mails to his former e-mail address and to automatically forward incoming e-mails to the senders with a message that his e-mail account had been closed.  The managing partner of the firm asked for an opinion as to whether the firm’s procedures for handling the departed lawyer’s e-mail comply with the Pennsylvania Bar Rules and whether it is required to honor the former partner’s request to forward the e-mails to the former partner without reading them.

The opinion reviewed Penn. and Phila. Joint Ethics Op. 2007-300 (2007), which was based on ABA Formal Ethics Op. 99-414 (1999).  Both opinions state that when a lawyer leaves a firm, those with managerial authority in the firm have duties to insure that the interests of clients in active matters are competently, diligently and loyally represented during the transition under the Pennsylvania Bar Rules to keep clients informed about the change as required under Pennsylvania Bar Rule 1.4(b), to make clear that the clients may choose to be represented by the lawyer, the firm, or another lawyer, and to protect the clients’ interests upon withdrawal as set out in Rule 1.16(d).

According to the opinion, the firm’s practice of opening and reviewing e-mails addressed to the  former partner is permitted to the extent necessary to carry their duties and those same duties prohibit the firm from honoring the former partner’s request to return the incoming e-mails.  The opinions stated that some interaction with the substance of the messages is necessary so that the firm can determine its responsibilities to current clients, former clients, clients who have elected to follow the former partner, as well as third parties.  The opinion also states that reply messages to the senders should include the ex-partner’s contact information and that e-mails clearly intended for the departed attorney must be forwarded to him.

The opinion also cited Pennsylvania Bar Rule 4.4(b), which requires a lawyer who receives an inadvertently sent document to promptly notify the sender and stated that this rule applies to e-mail that the managing partner reads when the e-mail is clearly meant for the departed lawyer.  The analysis may also be affected by any partnership agreement, any agreement made with the departing lawyer upon his withdrawal, and the firm’s written and/or customary employment practices.

The second issue involved funds the law firm was holding which were paid by a client who decided to follow the lawyer to his new practice.  The fee agreement between the client and the firm provided that a $50,000.00 retainer would be used for services billed at hourly rates, with the firm handling the matter on a contingency fee basis after the retainer was exhausted; however, without the knowledge and authorization of the managing partner, the former lawyer had brought on an outside attorney as co-counsel and they agreed to reserve $30,000.00 of the client’s retainer for expert fees.

When the lawyer left the law firm, $30,000.00 of the client’s initial $50,000.00 fee retainer remained in the firm’s trust account and the question was whether it was permissible to apply it to the firm’s unbilled time on the matter, which far exceeded the balance of the retainer. The former partner claimed the funds were to pay the expert’s fees and requested that it be transferred to him.  The opinion stated that since the separate arrangement to use the remaining $30,000 for expert fees was contrary to the terms of the fee agreement and the firm has an interest in the funds under that agreement, Pennsylvania Bar Rule 1.15(f) requires that a lawyer who has funds in which two or more persons claim an interest to hold the funds separate until the dispute is resolved; therefore, the firm must keep the funds in trust until the dispute is resolved.

Bottom line: According to this Pennsylvania ethics opinion, when a lawyer leaves a law firm, the former firm is permitted to monitor the lawyer’s incoming e-mails to that e-mail account and was also required to hold disputed funds paid by the client for a fee retainer when they are disputed even though the funds were disputed because of a separate agreement apparently made between the former partner and the client without the law firm’s knowledge.  Lawyers in Florida and other states must consult review Bar Rules and ethics opinions to obtain guidance on these issues; however, it is likely that The Florida Bar would reach the same conclusions.

Let’s 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 Departing lawyer and law firm responsibilities, joe corsmeier, Joseph Corsmeier, Lawyer escrow accounts, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer trust accounts, Lawyer written fee agreements

Florida Bar Staff Opinion states that Florida lawyers are prohibited from listing areas of practice on Linkedin.com “Skills and Expertise” page unless certified in those areas

Hello and welcome to this Ethics Alert blog which will discuss the September 11, 2013 Florida Bar Advertising Staff Opinion which states that Florida lawyers cannot list areas of practice on Linkedin.com “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The staff opinion is here: http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pdf    

As you most likely already know if you are a member of Linkedin.com, Linkedin.com lawyers can be endorsed for their “Skills and Expertise” on a separate page.  As you might also know, the endorsements can come from anyone and can be for multiple areas of practice.  One of the questions that I have been asked is whether a lawyer is permitted to accept an endorsement for “Skills and Expertise” when that lawyer is not Board Certified (or the equivalent under the Bar Rules).  I have responded that I believed that the Bar would have an issue with such endorsements and would state that the endorsements would violate the Bar Rules unless the lawyer was certified in the area in which he or she was endorsed.

 

Cynthia Booth, a staff advertising counsel for The Florida Bar’s Ethics and Advertising Department recently rendered a Staff Opinion stating that such endorsements for “Skills and Expertise” are prohibited unless the lawyer is certified in that area of practice.  The opinion states:

“A lawyer can only state or imply that the lawyer is ‘certified’, a ‘specialist’, or an ‘expert’ if the lawyer is certified by The Florida Bar, by a certification program accredited by the American Bar Association, or by a state bar with certification standards comparable to those of The Florida Bar.  Rule 4-7-14(a)(4).  Certification is specific to individual lawyers; a law firm cannot be certified, and cannot claim specialization or expertise in an area of practice.  Rule 6-3.4(c).  Based on these rules, it is staff’s position that you may not list your areas of practice under the header “Skills and Expertise” as you are not board certified.  While Rule 4-7.14(b) permits an attorney to use language that is potentially misleading if the advertisement contains information or statements that adequately clarify the potentially misleading issue, it is staff’s position that providing language in the Linkedin profile indicating that you are not board certified and not an expert will not remedy this issues.  I have included a copy of New York State Bar Association Opinion 972 which reaches a similar conclusion.”

Bottom line:  This staff opinion is not binding and is intended to provide guidance to lawyers; however, lawyers must be aware that The Florida Bar has taken this position in the recent staff opinion.  This is clearly an important issue that must be addressed by The Florida Bar and the Bar’s Statewide Committee on Advertising will be considering the issue to potentially draft a formal advertising opinion at its next meeting on October 8, 2013.  If you would like to provide your comments to the Statewide Committee on Advertising, you can send them to Elizabeth Tarbert, the Ethics and Advertising Counsel for The Florida Bar who oversees the committee, or you can attend the meeting and ask to be heard.

Let’s 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 Bar, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics opinions Linkedin.com

California Ethics Opinion reviews advertising restrictions on lawyers when posting and commenting on Facebook and other social media websites

Hello and welcome to this Ethics Alert blog which will discuss the 2012 California Formal Ethics Opinion which addresses a lawyer’s obligations when posting on Facebook and other social media websites.  The opinion is Cal. Formal Op. 2012-186 (12/21/12).  The ethics opinion is here: http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-186%20%2812-21-12%29.pdf

The California State Bar’s Standing Committee on Professional Responsibility and Conduct issued a formal ethics opinion with guidelines and ethical restrictions on California attorneys when using social media.  The opinion states that Facebook and other social media advertising is subject to the same Bar Rules as traditional forms of advertising and under those rules, false and misleading advertising is prohibited.  The opinion also states that the determination of whether the comment is a communication subject to the California Bar Rules is whether it is a message or offer “concerning the availability for professional employment”. 

The opinion reviewed and analyzed the following hypothetical facts and comments:

“Attorney has a personal profile page on a social media website. Attorney regularly posts comments about both her personal life and professional practice on her personal profile page. Only individuals whom the Attorney has approved to view her personal page may view this content (in Facebook parlance, whom she has “friended”).  Attorney has about 500 approved contacts or “friends,” who are a mix of personal and professional acquaintances, including some persons whom Attorney does not even know.

In the past month, Attorney has posted the following remarks on her profile page:

1.         ‘Case finally over. Unanimous verdict! Celebrating tonight.’

2.         ‘Another great victory in court today! My client is delighted. Who wants to be next?’

3.         ‘Won a million dollar verdict. Tell your friends and check out my website.’

4.         ‘Won another personal injury case. Call me for a free consultation.’

5.         ‘Just published an article on wage and hour breaks. Let me know if you would like a copy.’

The opinion concludes that comments 1 and 5 would not be a communication “concerning the availability for professional employment” subject to the California Bar Rules; however, comments 2, 3, and 4 would be communications subject to the Bar Rules.  The opinion also states, in a footnote, that the conclusions in the opinion are not limited to Facebook and would include Twitter, social media and other websites.

Bottom line:  As I have said many times in the past, state Bar Ethics Opinions are not binding and are intended only to provide guidance to lawyers; however, this opinion gives a good overview of the requirements of the California Bar Rules when a lawyer posts on social media and other websites.  The California Bar Rules state that the advertising rules apply to communications “concerning the availability of employment”.  The analysis and conclusions in this opinion would arguably apply to lawyers in other states which have the same or similar language, for example, Rule 4-7.11(a) of The Florida’s Bar advertising rules state that: (t)he terms “advertising” and “advertisement” as used in (the Florida Bar rules) refer to all forms of communication seeking legal employment, both written and spoken.”

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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Georgia lawyer who falsely witnessed a quitclaim deed and provided false responses to disciplinary complaint disbarred by the Georgia Supreme Court

Hello and welcome to this Ethics Alert blog which will discuss the recent Georgia Supreme Court opinion which disbarred a lawyer who, inter alia, provided a false response to a disciplinary complaint.  The opinion is In the Matter of Donald O. Nelson, Ga. Supreme Court Case No. S13Y1024 (September 9, 2013).  The opinion is attached and online here: http://www.gasupreme.us/sc-op/pdf/s13y1024.pdf

According to the opinion, the lawyer (who was admitted to practice in 1969) “represented the lender in a refinancing of property owned by a married couple.At the closing, the Husband signed the security deed and believed he was a joint borrower with his Wife. However, in October 2005, a quitclaim deed transferring Husband’s interest in the property to Wife was prepared in Nelson’s office. Someone other than Husband executed the quitclaim deed. Nelson witnessed, and his legal assistant notarized, Husband’s signature. The quitclaim deed was filed in February 2006, and in March 2006, Wife obtained a second mortgage on the property unbeknownst to Husband. The husband first learned of the forged quitclaim deed in mid-2006.”

“In response to inquiries by the State Bar, Nelson made intentional misrepresentations of fact, writing in January 2008 that after the refinancing closing, it was discovered that Husband had inadvertently failed to sign the quitclaim deed, but that upon notification by Nelson’s office, Husband came to the office and executed the quitclaim deed. In another written response provided in March 2008, Nelson stated his ‘belief that Husband signed the Quit Claim Deed on the day following the closing.’ In January 2009 Nelson again wrote to the State Bar reiterating that his prior written responses were true and correct, adding that he had ‘very deliberately and methodically explained to [Husband] that the loan had been approved in his wife’s name only’ and that it would be necessary for him to execute a quitclaim deed to Wife so the loan could be closed in her name only. Nelson admitted at the evidentiary hearing that he made the written statements in January 2008 and January 2009 without having any specific recollection of the events.”

The lawyer had two prior disciplinary offenses including a “lengthy suspension” following a 1995 guilty plea to one count of money laundering along with a reprimand in 1994. The special master found in aggravation that the lawyer had obstructed the disciplinary proceeding in bad faith, submitted false and misleading statements during the disciplinary proceeding, refused to acknowledge the wrongful nature of his conduct, and had substantial experience in the practice of law. The special master also noted that under Georgia Bar Rule 4-103, a third or subsequent disciplinary infraction constitutes grounds for disbarment.   The opinion approved the special master’s recommendation of disbarment.

Bottom line:  This lawyer would most likely have been in serious trouble even if he had been truthful in responding to the allegations in the Bar complaint; however, the false responses and statements pretty much cinched the deal.  The lawyer admitted that he made the written statements “without having any specific recollection of events.”  As I have said many times and in many forums, as bad as it is to have to respond to a Bar complaint, it is even worse for the lawyer to either lie or rely solely on memory in making the response.  As was also said many years ago, “the cover up is worse than the crime”.

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 misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements in response to Bar complaint, Lawyer misrepresentation, Lawyer sanctions

South Carolina ethics advisory opinion states that lawyers are responsible for insuring that claimed third party website profiles and content comply with Bar Rules

Hello and welcome to this Friday the 13th edition of the Ethics Alert blog which will discuss the South Carolina ethics advisory opinion which states that lawyers who claim their profile on third party websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo and who solicit peer ratings are responsible for insuring that the content complies with that state’s Bar Rules.  The ethics opinion is South Carolina Ethics Advisory Opinion 09-10 and the 2009 opinion is online here: http://www.scbar.org/MemberResources/EthicsAdvisoryOpinions/OpinionView/ArticleId/107/Ethics-Advisory-Opinion-09-10.aspx

The ethics advisory opinion provides a comprehensive discussion of lawyers’ responsibilities regarding business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo, and other such websites under South Carolina Bar Rules, which are similar to many other state Bar Rules, including Florida.  According to the opinion, “(i)nformation on (these) business advertising and networking websites are both communications and advertisements; therefore, they are governed by (South Carolina Bar) Rules 7.1 and 7.2.  While mere participation in these websites is not unethical, all content in a claimed listing must conform to the detailed requirements of Rule 7.2(b)-(i) and must not be false, misleading, deceptive, or unfair.”

The opinion also states that “(s)oliciting peer ratings does not violate the Rules of Professional Conduct.  Martindale-Hubbell has employed a lawyer rating system for more than 100 years, and federal courts have held that advertising factual information about such verifiable, independent ratings does not violate state advertising prohibitions against statements likely to mislead or create unjustified expectations about results.  See, e.g., Mason v. Florida Bar, 208 F.2d 952 (11th Cir. 2000).  More recently, advertisements about newer ratings organizations, such as SuperLawyers, have been given the same regulatory berth by state agencies.  See, e.g., In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008)(per curiam)(vacating the court’s own committee’s 2006 advisory opinion prohibiting advertising of “SuperLawyers” and “Best Lawyers in America” designations, on the grounds that the prohibition is likely unconstitutional because such designations are factually verifiable). Therefore, provided that the rating is presented in a non-misleading way and is independently verifiable, including one’s rating in an online listing or elsewhere appears permissible.”

“Lawyers soliciting client comments on web-based business listings are also cautioned to adhere to Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another. Even absent a specific prohibition against testimonials, several states have concluded that client comments contained in lawyer advertising violate the prohibition against misleading communications if the comments include comparative language such as “the best” or statements about results obtained. See, e.g., Virginia State Bar Lawyer Advertising Opinion A-0113 (2000). Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements. Therefore, a lawyer should monitor a ‘claimed’ listing to keep all comments in conformity with the Rules.  If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.

Bottom line:  As I have said previously, state Bar ethics opinions are not binding on lawyers; however, this ethics opinion is useful for guidance since it addresses many of the issues related to lawyers’ participation in business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo.  The opinion concludes that, although a lawyer’s participation in such websites is ethical, the lawyer is required to insure that the content and communications are in compliance with that state’s Bar Rules and the lawyer should monitor a claimed listing to make sure that all comments comply with the Bar Rules.  Florida lawyers should also keep in mind that the recent Florida advertising rule revisions state that the advertising rules apply to “all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media.” 

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, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics opinions Linkedin.com, Lawyer responsibilities AVVO and Linkedin, Lawyers and social media

New York Ethics Opinion states that law firms are prohibited from listing areas of practice in the “Specialties” section of Linkedin.com

Hello and welcome to this Ethics Alert blog which will discuss the recent New York ethics opinion which addresses the ethics issues surrounding the use of Linkedin.com to describe the areas of practice of lawyers and law firms.  The ethics opinion is New York State Bar Association Committee on Professional Ethics Opinion 972 (6/26/13).  The opinion is also online here: http://www.nysba.org/Content/ContentFolders/EthicsOpinions/Opinions901975/EO_972.pdf.

According to the ethics opinion, law firms are prohibited from listing the firm’s services in a section of LinkedIn listed as “Specialties” since New York Bar Rules only permit individual lawyers to state that they have been certified as specialists.  A law firm is allowed to identify areas of its law practice; however, listing ” those areas under a heading of ‘Specialties,’ would constitute a claim that the lawyer or law firm ‘is a specialist or specializes in a particular field of law” and only individual lawyers are permitted to be certified in New York

Bottom line: this New York ethics opinion states that law firms may not list their services under the heading “Specialties” on Linkedin (and other social media websites) and individual lawyer are permitted to list their services under that heading only if the lawyer is certified as required under the New York Bar Rules.  Since most, if not all, other jurisdictions have similar rules, I would anticipate that Florida and other jurisdictions examine this subject will agree with this analysis.      

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

 

 

3 Comments

Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions Linkedin.com