Monthly Archives: October 2013

The Florida Bar’s Statewide Committee on Advertising has reversed in part and affirmed in part the recent Bar Staff Opinion on LinkedIn

Hello everyone and welcome to this update of my October 14, 2013 Ethics Alert which will discuss the decision of The Florida Bar Standing Committee on Advertising (SCA) today (October 29, 2013) regarding the 9/11/13 Florida Bar Advertising Staff Opinion.  That Staff Opinion states, inter alia, that Florida lawyers cannot list areas of practice on the LinkedIn “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The September 11, 2013 staff opinion is here:  http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pdf

I have received information today from Bar Ethics and Advertising Counsel Elizabeth Tarbert updating the SCA’s decisions at its meeting today, October 29, 2013 regarding the September 11, 2013 Staff Opinion on LinkedIn.

According to Ms. Tarbert, the SCA voted 3-1 to affirm the staff opinion that the firm may not list areas of practice under the header “specialties” even though the word “specialties” is chosen by LinkedIn and cannot be modified by the firm because the firm controls whether the firm adds areas under the listing, a law firm cannot be certified, and the areas listed are not areas of certification under Rule 4-7.14(a)(4) and 6-3.4(c).

The SCA voted 4-0 to reverse the staff opinion that a listing under “Top Skills and Expertise”  of wrongful death, personal injury litigation, medical malpractice, automobile accidents, product liability (together with a numeric indicator) violates Rule 4-7.14(a)(4), because the firm states that the information is posted solely by LinkedIn and the firm has no control over the posting.

The SCA voted 4-0 to reverse the staff opinion that a posting of a former firm employee requires the area of certification when indicating board certification under Rule 4-7.14(a)(4) because the firm states that LinkedIn is solely responsible for the appearance of the posting of part of a former firm employee’s profile on the firm’s LinkedIn page and the firm has no control over the posting and cannot modify it.

The SCA also voted to contact LinkedIn to inform LinkedIn of the problem created for Florida Bar members by LinkedIn choosing the terms “specialties” and “expertise” in parts of LinkedIn profiles without the entity having the ability to modify those terms, in light of Rule Regulating The Florida Bar 4-7.14(a)(4), and to request that LinkedIn change its method of operation to permit modification of those terms by individual entities when creating their profiles.

The SCA also voted 4-0 to request that the Board of Governors direct the committee to issue a formal advisory opinion on LinkedIn, including the “specialties” header, the endorsements feature that shows endorsements for “skills and expertise.”  If the Board of Governors approves the committee’s request to adopt a formal advisory opinion, a notice will be published in the bar News inviting comments by members of The Florida Bar in good standing in accordance with the Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation.

Bottom line:  This decision by the SCA reverses the advertising staff’s opinion and finds that a listing under “Top Skills and Expertise” does not violate Rule 4-7.14(a)(4) and that a posting of a former firm employee requires that does not have the area of certification when indicating board certification does not violate Rule 4-7.14(a)(4); however, it affirms the staff’s opinion that a law firm may not list areas of practice under the header “specialties” even though the word “specialties” is chosen by LinkedIn and cannot be modified by the firm.  In addition, the SCA voted to contact LinkedIn and inform that entity of the problems created for lawyers and also to ask the BOG to request the SCA to issue a formal opinion on the subject.  This appears to be a step in the right direction and I will keep everyone posted when I receive additional information.

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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The Florida Bar’s BOG Communications Committee considers the posting of records in pending lawyer disciplinary matters on the Bar’s website

Hello and welcome to this Ethics Alert blog which will discuss the article in the November 1, 2013 issue of The Florida Bar News about the issue of publicizing pending Bar disciplinary matters which was discussed by the Bar Board of Governors (BOG) Communications Committee at its meeting on October 3, 2013.  The article is here: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/8349dc13e54c79b685257c0b00445113!OpenDocument

The Florida Bar provides information and documents related to a lawyer’s final discipline in the past ten (10) years on the lawyer’s profile on its website at http://www.floridabar.org/  According to the News article, the BOG Communications Committee discussed at what point information about pending disciplinary cases should appear on the lawyer’s website profile at its October 3, 2013 meeting.  The committee discussed the question and ultimately decided to create a subcommittee to examine the issue, which was reported to the full BOG.

The BOG recently approved the committee’s recommendation to immediately post disciplinary information when the Supreme Court issues an order in a discipline case.  That decision addressed concerns that the Bar’s website had continued to show that a lawyer was a member in good standing from the date of the Florida Supreme Court’s disciplinary Order and the 30 day period during which a suspended or disbarred attorney is typically allowed to close down his or her law practice.

According to the News article, the suggestion that the Bar post information and a link when a referee has reached a finding of guilt and recommends discipline in a Bar grievance matter or when the Bar and accused lawyer reach a consent agreement was endorsed by the Citizens Forum.  Some committee members expressed concerns during that posting information could damage lawyers who are later acquitted or found guilty of less serious violations.  Others stated that not posting the information would mean that the Bar’s website would continue to show a member as in good standing even after a referee has recommended sanctions for serious disciplinary violations.

The article said that committee members also said that any policy must acknowledge that most information about a pending disciplinary matter becomes public once a disciplinary committee finds probable cause or find no probable cause and there are limited exceptions which allow the Bar to acknowledge the existence of an investigation prior to a grievance committee finding.

Bottom line:  Although this issue does not affect most lawyers, the question is whether it is appropriate to publicize a lawyer’s disciplinary matter on that lawyer’s profile on the Bar’s website when the disciplinary matter is not final and the lawyer has not actually been disciplined.  My belief is that this would be inappropriate.  You can make your position known to the Bar as well.

Let’s be careful out there!                    

Disclaimer:  this blog is not an advertisement and 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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ABA ethics opinion states that lawyers may use Groupon-type websites to market legal services; however, there are “numerous difficult” ethics issues

Hello and welcome to this Ethics Alert blog which will discuss the recent American Bar Association formal ethics opinion which states that lawyers may market using Groupon type websites; however, there are “numerous difficult issues associated with prepaid deals, especially how to properly manage payment of advance legal fees”.  The opinion is ABA Formal Opinion 465 (October 21, 2013).  The ethics opinion is attached and is also here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_465.authcheckdam.pdf

The opinion does not specifically mention the Groupon website except in a footnote referencing a state bar opinion (Alabama State Bar, Formal Op. 2012-01 (2012)); however, the opinion describes arrangements that are similar to Groupon which include “daily deals” that are advertised on a website and consumers who want deal notifications can sign up to receive them in e-mails.  After a certain number of people purchase a “deal”, the marketing organization and the business share the proceeds. The buyers get a voucher, code or coupon.

The ethics opinion says these “Deal-of-the-day or group-coupon marketing programs” are structured in two ways.  In a “coupon deal”, a lawyer would sell a coupon for a 50 percent discount for a certain number of hours of legal services.  In a “prepaid deal”, a lawyer would charge a certain reduced amount for up to a certain number of hours of legal services, which would be double the value of the amount paid. The payments are collected by the marketing organization and this “prepaid” structure is what primarily concerns the ABA Standing Committee in the formal opinion.

According to the ABA opinion, “(t)he committee believes that coupon deals can be structured to comply with the Model Rules.  The committee has identified numerous difficult issues associated with prepaid deals, especially how to properly manage payment of advance legal fees, and (the committee) is less certain that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.”

The opinion states that the reason that “coupon deals” may be structured to comply with the ethics rules is the fact that no legal fees are paid unless a lawyer/client relationship is established, after which time is spent and the discounted fees are collected.  According to the opinion, the aggregate amount collected from coupon sales may be deposited into a lawyer’s general account.  The opinion states that, conversely, the funds collected in “prepaid deals” amounts to advance legal fees that must be identified by purchaser name and deposited into a trust account.  The lawyer would therefore be required to obtain sufficient information about the prepaid deal buyers to comply.

Some other questions included what the lawyer must do if a deal is purchased and never used.  The opinions states that the lawyer can retain the funds from a coupon deal as long as the offer explains there will be no refunds; however, the funds collected in a prepaid deal most likely will need to be refunded to prevent the fee from becoming unreasonable/excessive under the ABA Model Rules. 

In addition, if a lawyer is unable perform legal services because of a conflict of interest or other ethical restriction, the lawyer must provide a full refund to the buyer, even if the deal is structured as a coupon.  If that happens, the lawyer must refund the full amount paid by the buyer, including the funds retained by the marketing organization.  According to the opinion, this is based on “the fact that it would be unreasonable to withhold any portion of the amount paid by the purchaser if the lawyer is precluded from providing the proffered services through no fault of the purchaser.”

The opinion noted several other ethical issues, including the duty of the lawyer to insure that the marketing statements are accurate.  The scope of services offered must also be clearly defined and the circumstances for refunds fully described, the opinion says.  Finally, the advertising should state that a client-lawyer relationship will not exist until the consultation takes place.

There is no Florida ethics opinion on Groupon type marketing; however, I have previously blogged about the recent Indiana ethics opinion (Indiana State Bar Ass’n Legal Ethics Comm., Advisory Op. 1 (2012)) which addressed this type of marketing.  The Indiana opinion reached virtually the same conclusions as the ABA opinion and stated that this type of marketing is “fraught with peril.”

Bottom line:  It is clear that lawyers who wish to participate in this marketing must be very wary of the numerous ethical “perils”.

Let’s be careful out there!

Disclaimer:  this blog is not an advertisement and 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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Ohio lawyer reprimanded for filing defamation action against wrong party without conducting investigation, failing to amend, and failing to respond to Bar complaint

Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Ohio opinion reprimanding a lawyer for filing a defamation action against the wrong party without conducting an investigation, refusing to amend when advised of the error, and failing to respond to the subsequent Bar complaint.  The opinion is Ohio Disciplinary Counsel v. Lehmkuhl, Slip Opinion No. 2013-Ohio-4539 (October 16, 2013).  The disciplinary opinion is here: http://www.sconet.state.oh.us/ROD/docs/pdf/0/2013/2013-Ohio-4539.pdf

According to the opinion, the lawyer filed a defamation complaint in 2009 on behalf of himself, his wife, and Arlene and Timothy J. McAfee alleging that the named defendants, Joseph and Amanda Erb, and alleged that they were a married couple.  The complaint stated that they had been interviewed by a local television news crew about the purported treatment of horses owned by the lawyer and pastured by the McAfees and had made numerous false accusations against the plaintiffs with careless disregard as to whether the statements were true, with the intent to defame the plaintiffs.

The answer and counterclaim admitted that Joseph had spoken with the news crew and expressed his opinions regarding the treatment of the lawyer’s horses; however, Amanda was Joseph’s daughter, not his wife, and she had no involvement in the incident.  In their motions for summary judgment and for sanctions they again stated that Amanda was not a proper party.  According to the opinion, “Despite having been advised as early as January 2010 that he had erroneously named Erb’s daughter as a defendant in the defamation action, (the lawyer) waited until May 4, 2010, to dismiss the claims against her and did not seek leave to amend his complaint until May 6, 2010.”

On March 23, 2010, Joseph Erb filed a Bar grievance against the lawyer; however, the Bar dismissed it in May 2010 and advised him that he could file it again at the conclusion of the underlying litigation. “During settlement negotiations in the defamation case, (the lawyer) attempted to condition the dismissal of his civil case on the Erbs’ agreement to abandon their grievance against him. After he was advised that such a condition would violate ethical rules, however, he settled the case without any limitations on the Erbs’ right to pursue their disciplinary grievance.  Mr. Erb refiled his grievance in April 2011.” 

The lawyer requested an extension of time to file a response; however, he never provided any response. “Two days after the lawyer’s father-in-law died, (Bar counsel) sent a second letter by certified mail requiring a response.  Though he received the letter, he did not respond due to the family turmoil surrounding his father-in-law’s death. He also failed to appear for a deposition in (the Bar’s) office after being personally served a subpoena duces tecum because the date did not get placed on his calendar.”

The opinion accepted the stipulation between the parties and imposed a public reprimand on the lawyer “for initiating a defamation action without adequately investigating the identity of the proper defendants, failing to timely amend his complaint when he learned that he had misidentified one of the defendants, and failing to cooperate in the ensuing disciplinary investigation.

Bottom line: This lawyer has hopefully learned a few lessons from his unfortunate experience:  1) lawyers must conduct an adequate investigation before filing a lawsuit, particularly a defamation lawsuit, 2) lawyers are not permitted to condition the settlement of a lawsuit on the withdrawal of a lawsuit, and 3) lawyers should always respond to a Bar complaint.

Disclaimer:  this e-mail is not an advertisement and 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 discipline for failure to respond to complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of diligence, Lawyer sanctions

The Florida Bar’s Statewide Committee on Advertising has deferred consideration of informal opinion on Linkedin “Skills and Expertise” page until 10/29/13

Hello everyone and happy Columbus Day to you. This is an update of my 9/24/13 Ethics Alert blog which discussed 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 September 11, 2013 staff opinion is here:  http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pd

I was advised by the Ethics and Advertising Counsel for The Florida Bar today that the SCA was unable to consider the staff opinion at its October 8, 2013; however, the committee plans to consider the opinion at its meeting on October 29, 2013.  I will keep everyone advised.

Bottom line:  As I stated in my previous Ethics Alert, the 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.  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 SCA, or you can attend the meeting and ask to be heard.

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) 799-1670jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics opinions Linkedin.com, Lawyer ethics opinions nonrefundable fees, Lawyer responsibilities AVVO and Linkedin

New Florida Statutes §732.806, which is effective October 1, 2013, makes an improper gift to a lawyer in a will or other estate instrument void

Hello and welcome to this Ethics Alert blog which will discuss new Florida Statutes §732.806, which is effective today, October 1, 2013.  The new statute provision makes an improper gift to a lawyer in an estate planning instrument void as a matter of Florida law.  The statutory provision is here: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.806.html

The new Florida statute in effect tracks 4-1.8(c), Rules Regulating The Florida Bar and incorporates it into the probate code, and makes a violation of the statute a basis for voiding any part of a will, trust or other written instrument which makes an improper client gift to the drafting lawyer or a person related to the lawyer. The statute also provides exceptions to this prohibition, including gifts where the lawyer or other person is related to the person making the gift as well as title to property acquired for value from a person who receives the property which violated the statute. 

The previous (common law) rule in Florida probate was that gifts made to lawyers in violation of Bar Rule 4-1.8(c) were not automatically void; however, the gifts created arebuttablepresumption of undue influence by the drafting lawyer.

F.S. §732.806(1) states:.

 

 732.806  Gifts to lawyers and other disqualified persons.

 

 (1)  Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.

 

F.S. §732.806(7)(a) further states:

 

 (7)  For purposes of this section:

 

 

(a)  A lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer.

Bottom line:  As of today (October 1, 2013), improper client gifts made by a lawyer to him or herself in a testamentary instrument are now void as a matter of law.

Be careful out there!

Important disclaimer:  this Ethics Alert does not contain any legal advice and the statements and comments herein should not be relied upon by anyone who reads it.                           

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer testamentary gifts from clients, Statute lawyer gifts from clients in will