Monthly Archives: November 2013

Nebraska Supreme Court imposes indefinite suspension on lawyer who contacted the criminal prosecutor after she was fired to “ensure the client’s conviction.”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Nebraska Supreme Court imposing an indefinite suspension on a lawyer who failed to respond to charges that she “disclos(ed) confidential information regarding criminal charges against a former client in order to ensure the client’s conviction.”  The opinion is State of Nebraska ex rel. Counsel for Discipline v. Donna J. Tonderum, SC-13-083, 286 Neb. 942 (November 22, 2013).  The disciplinary opinion is at: http://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-083.pdf

According to the opinion, the lawyer was retained to defend a client charged with criminal first degree sexual assault.  The client and his family subsequently hired another attorney and terminated her representation.  The lawyer then contacted the criminal prosecutor to discuss the case also “stated that she no longer represented her former client because he had rejected her advice and hired the other attorney.  (She) stated that she “hated” the other attorney, that she knew her former client was guilty, and that she wanted to make sure the prosecutor sent (her) former client to prison.

The lawyer gave the prosecutor the names of witnesses related to the former client’s case, stated what their testimony would be, provided contact information for some witnesses, and informed the prosecutor of the expected the defense strategy.  Not surprisingly, the criminal prosecutor called disciplinary counsel and advised the new lawyer for the defendant.

The opinion states that, “(the lawyer’s) failure to respond to the formal charges filed by (disciplinary counsel) is also troublesome. We consider an attorney’s fail­ure to respond to inquiries and requests for information from (disciplinary counsel)  as an important matter and as a threat to the credibility of attorney disciplinary proceedings.  As noted, (the lawyer’s) failure to file an answer to the formal charges leaves us with­out any record of mitigating factors, other than her previous record of no violations, and no way to assess her fitness to practice law.

The court declined to disbar the attorney, notwithstanding her failure to respond to the charges.  “(U)nder the facts of this case, we conclude that an indefinite suspen­sion, with a minimum suspension of 3 years, is the appropri­ate discipline.

Bottom line:  This case is bizarre, to say the least. According to the disciplinary Complaint (which the lawyer did not respond to or rebut), the lawyer was fired from representing the client in the criminal case and, since she was fired and “hated” the successor lawyer, she was willing to breach her client’s confidences in order to “make sure” the former client went to prison.  It is also surprising that the court did not disbar the lawyer, especially in light of her failure to respond to the disciplinary charges.

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 Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, Confidentiality and privilege, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer discipline, lawyer discipline for failure to respond to complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

New Jersey Federal District Court states that lawyers may not post excerpts from judicial opinions complimenting the quality the lawyers’ work on their websites

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of a judge in the Federal District Court in New Jersey which upheld a New Jersey advertising Guideline which stated that a lawyer or law firm “may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.”  The opinion is Dwyer v. Cappell, Civil Case No. 12-3146 (FSH) (U.S. Dist. Ct. District of New Jersey) (June 26, 2013).  The federal court opinion is here: http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2012cv03146/274778/48/0.pdf?ts=1372347583 

According to the federal judge’s opinion, a state judge sent correspondence in 2008 to a lawyer (Andrew Dwyer) requesting that the lawyer remove a quote from one of his judicial opinions from his law firm’s website within which he stated, inter alia, that the lawyer was an “exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me.”  The lawyer refused to remove it (for whatever reason) so the judge referred the matter to the New Jersey Committee on Attorney Advertising, which considers ethics issues and renders advisory opinions related to the state’s lawyer advertising rules for review.

On May 15, 2012, the New Jersey advertising committee issued Attorney Advertising Guideline 3, stating that “an attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.”

The New Jersey Supreme Court adopted the Guideline and, in a comment published with the Guideline, noted that Rule 7.1(a) of the state’s Rules of Professional Conduct (which essentially follows the ABA Model Rules of Professional Conduct) prohibits misleading statements and “(t)he committee finds that such quotations or excerpts, when taken out of the context of the judicial opinion and used by an attorney for the purpose of soliciting clients, are prohibited judicial endorsements or testimonials….(a)s such, these quotations or excerpts from a judicial opinion in attorney advertising are inherently misleading in violation of RPC 7.1(a).”  Guideline 3 and the comment are here:  http://www.judiciary.state.nj.us/notices/2012/n120518a.pdf

Guideline 3 was to become effective on June 1, 2012; however, on May 30, 2012, the lawyer filed a complaint in the U.S. District Court for the District of New Jersey seeking to enjoin enforcement of Guideline 3 as an unconstitutional restriction on his First Amendment free speech rights.  The opinion states that “Guideline 3 is not a ban on speech but is instead a disclosure requirement, because it requires full disclosure of a judicial opinion.” Further, Guideline 3 met the reasonableness test set out by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), wherein the Court found that a disclosure requirement on attorney advertising speech is constitutional as long as it is reasonably related to the state’s interests in preventing consumer deception.

According to the opinion, “(a) judicial quotation’s potential to mislead a consumer is self-evident (and)…(w)ithout the surrounding context of a full opinion, judicial quotations relating to an attorney’s abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system.” 

The opinion concluded that “the disclosure requirements of Guideline 3 are reasonably related to the state’s interest in preventing the deception of consumers and preserving public confidence in the impartiality of the judiciary; moreover, Guideline 3’s requirements are not unduly burdensome, as they simply require the full context surrounding a judge’s evaluation of a lawyer.”

Bottom line:  This opinion (and the NJ Guideline) seems to stretch the meaning of “disclosure” and the advertising restriction/disclosure seems somewhat over the top since it assumes that someone could be “misled” by an accurate quote from a judicial opinion.  I am also not entirely sure why the judge was upset and why the lawyer didn’t just take the quote down.

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 Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising judicial opinion excerpts on website, Lawyer advertising rules, Lawyer Professionalism, Lawyer websites

Florida Supreme Court suspends lawyer for 2 years for “appalling and unprofessional behavior” including “screaming at judges and opposing counsel”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Florida disciplinary opinion which increased a referee’s recommended suspension from 90 days to 2 years for “appalling and unprofessional behavior” including, inter alia, “screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him.”  The disciplinary opinion is The Florida Bar v. Norkin, No. SC11-1356 (October 31, 2013).  The opinion is here: http://www.floridasupremecourt.org/decisions/2013/sc11-1356.pdf

According to the opinion, The Florida Bar filed a complaint against the lawyer, alleging that, on numerous occasions, he behaved “in an unprofessional and antagonistic manner during the course of litigating a civil case.”  The lawyer was representing the defendants in a lawsuit filed in Miami-Dade County which arose from a dispute between business partners.  The lawyer was “initially” cordial in his interactions with opposing counsel; “(h)owever, one month later, in August 2008, (the lawyer’s demeanor changed and he became combative.  Based upon Respondent’s unprofessional behavior towards the presiding judges, a senior judge who was appointed to serve as a court appointed provisional director of the corporation, and opposing counsel…”

As one of multiple examples of the lawyer’s disruptive behavior, the opinion quoted an exchange between the lawyer and the (second) presiding judge:  “During a hearing on April 17, 2009, Judge Dresnick commented, ‘I am finding these hearings with you extremely difficult.  You talk very loud.  I am telling you at every hearing.  You are very angry, you make me angry. I don’t like angry lawyers.  There is no point in it.’  Later in the same hearing, Judge Dresnick commented, ‘I have told you three times already. I’m telling you, I am different than the last judge and so you are going to modify your behavior when you come in here. I am a low volume, low key guy until I get pissed off. You know what pisses me off?  People coming in here and raising their voices at me.”

In another example: “At a hearing on December 22, 2009, Judge Dresnick remarked, ‘You come in like a bull in a china shop. You do it every time.  I don’t know if you are trying to piss me off or what but you do it.’ In the same hearing, Judge Dresnick commented, ‘I remember you coming in here and screaming the way you are doing consistently….You’re the one that raised your voice.’

The lawyer “argued (to the referee) that his voice is naturally loud, he speaks loudly when he feels he is not being heard, and he is working with a behavioral therapist to correct his behavior.  The referee rejected the lawyer’s explanation about the volume of his voice as “patently unbelievable” and found that his behavior was “calculated” and that when the lawyer “felt he was not winning during a particular hearing, he would raise his voice and behave in an angry, disrespectful manner.”  The referee recommended that the lawyer be suspended for 90 days.

The opinion affirmed the referee’s factual findings that the lawyer “engaged in numerous acts of misconduct by behaving in an unprofessional and antagonistic manner during the course of a civil case”; however, it rejected the referee’s recommended 90 day suspension, stating that “(t)here are proper types of behavior and methods to use when aggressively representing a client.  Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional without being obnoxious.”  The opinion imposed a 2 year suspension on the lawyer and also ordered him to personally appear before the Court for a public reprimand.

Bottom line:  This disciplinary case is another example of the Florida Supreme Court not hesitating to increase the recommended discipline of a referee.  In this case, the Court noted (and quoted) the extremely unprofessional/unethical conduct of the lawyer.  A footnote to the opinion also states that: “Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior.”

Let’s be careful out there…and don’t do this (I’m sure you won’t)!

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 Bar, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions