Monthly Archives: December 2013

2013 in review

The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 18,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 7 sold-out performances for that many people to see it.

Click here to see the complete report.

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Florida law firm files federal suit challenging constitutionality of The Florida Bar’s 2013 advertising rules, including LinkedIn and “objectively verifiable” requirements

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent federal lawsuit which was filed in the U.S. Northern District of Florida by the law firm of Searcy, Denney et al and their named partners challenging the constitutionality of the 2013 amended Florida Bar advertising rules.  The case style is Searcy Denney et al v. The Florida Bar et al.  The Complaint is here: http://guptabeck.com/wp-content/uploads/2013/12/Sercy-v-Fla-Bar-Cmplt.pdf.

The lawsuit was filed on or about December 10, 2013 against The Florida Bar in the United States District Court, Northern District of Florida alleging that certain of the Bar’s lawyer advertising rules are unconstitutional.  The lawsuit was filed because of the Bar’s application of the lawyer advertising rules to law firm websites and blogs along with the recent informal staff opinion addressing the listing law firm “specialties” on LinkedIn.com (which was recently revoked by the Bar’s Board of Governors).  The law firm and lawyer plaintiffs requested that the court to declare unconstitutional and enjoin enforcement of the requirement in Bar Rule 4-7.13 that statements in lawyer advertisements be “objectively verifiable” and the prohibition in Bar Rule 4-1.4 on a lawyer (or law firm) stating or implying that the lawyer specializes in or has expertise in an area of law such as on LinkedIn pages.

The lawsuit states as follows:  “According to the Bar, Searcy Denney’s website and blog violate a rule requiring statements to be ‘objectively verifiable’ because the websites express opinions on issues of public concern, including statements that the days ‘when we could trust big corporations … are over,’ that ‘(g)overnment regulation of … consumer safety has been lackadaisical at best,’ and that ‘when it comes to ‘tort reform’ there is a single winner: the insurance industry.’ The Bar also found garden-variety statements about the firm’s services and past cases to be ‘inherently misleading’ because the statements do not include all ‘pertinent’ facts of each case, while at the same time refusing the firm’s requests to clarify what facts the Bar considers pertinent. And it concluded that the firm’s pages on the social-media site LinkedIn.com violate several of the rules’ provisions because-among other things-LinkedIn automatically lists the firm’s ‘specialties’ and includes an unsolicited review posted by a former client.”

The lawsuit alleges that the cited advertising rules on their face and as applied by The Florida Bar violate the First Amendment of the U.S. Constitution and that the rules are void for vagueness under 42 U.S.C. § 1983.  The lawsuit requests that Rules 4-7.13 and 4-7.14 be declared unconstitutional and the Bar be enjoined from enforcing them and that the plaintiffs be awarded attorney’s fees, costs, and expenses under 42 U.S.C. § 1988.

Bottom line:  As I reported in my recent Ethics Alert blog, The Florida Bar’s Board of Governors (BOG) revoked the staff opinion on LinkedIn and authorized the Advertising Committee to draft an opinion addressing LinkedIn issues and approved guidelines for lawyers publishing past results.  The fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant and it will be interesting to see how this lawsuit proceeds in the federal court in the Northern District of Florida.  Stay tuned…

…and let’s be careful out there!                       

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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Florida Bar’s Board of Governors approves guidelines for advertising past results and revokes informal advisory opinion stating that LinkedIn violates Bar Rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent decisions of the Florida Bar Board of Governors, including approval of guidelines for advertising past results and revoking the staff advisory opinion stating the LinkedIn violates Bar Rules.  The Guidelines for Advertising Past Results are attached and are here: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/FB68CB88389B9FC785257C430053B5F9/$FILE/guidelines%20past%20results.pdf?OpenElement

The Florida Bar’s Board of Governors (BOG) met on December 13, 2013 and, based upon a recommendation of the BOG Review Committee on Professional Ethics, approved proposed guidelines for advertising past results under the 2013 revised advertising rules.  The BOG also voted to revoke the September 2013 staff advisory opinion/letter stating that the use of LinkedIn violates Florida Bar Rules and requested the Standing Committee on Advertising to prepare an advisory opinion on the use of the LinkedIn social and professional networking site by Florida lawyers.

Some of the most significant sections of the guidelines are below: 

“When an advertisement includes a dollar amount and language or an illustration that indicates that a client has received the specific amount (“My lawyer got me $X” with a photograph of a person receiving money), the dollar amount must be the net amount received by the client. The net amount is the amount after deductions for attorneys’ fees and litigation-related expenses.”

“An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2).”  Examples include failure to disclose that a civil verdict was overturned on appeal or claiming that an acquittal on one or more criminal charges was successfully obtained without disclosing that the client was convicted of other crimes in the same matter.

“Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results.”

“Statements regarding collective or aggregated results about the amount of recovery are impermissible under Rule 4-7.13(a) because they are inherently misleading as there is no way for the viewer to know how many cases, clients, and/or lawyers are involved or the amounts and facts of individual matters that would permit consumers to make informed decisions regarding them.”

Bottom line:  This is a significant development in the ongoing evolution of the Bar’s position on the 2013 revised advertising rules and lawyers’ use of social media.  All Florida lawyers should carefully review the past results guidelines (which are important but not mandatory or binding).  Although the revocation of the informal opinion does not necessarily change the Bar’s position that the terms “Specialist” and Skills and Expertise” cannot be used by lawyers other than those who are Board certified, the fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant.  Stay tuned…

…and 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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Massachusetts Supreme Court imposes public reprimand on lawyer who lacked competence in electronic discovery and violated court order

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Massachusetts Supreme Court which adopted a stipulation and imposed a public reprimand on a lawyer whose “lack of experience in electronic discovery” resulted in the violation of a court order to preserve digital evidence.  The lawyer was found to have violated Massachusetts Bar Rules related to violation of an order of the tribunal, client communication and competence.  The opinion is Massachusetts Bar v. Reisman, No. 2013-21 (October 9, 2013).  The opinion is at: http://www.mass.gov/obcbbo/pr13-21.pdf

According to the opinion, the lawyer was hired to represent ASI and an employee of ASI in defending civil claims brought by the former employer of the employee and a competitor of ASI called NSA.  The employee had resigned from NSA effective September 29, 2006, and had begun employment with ASI on October 1, 2006.  Without NSA’s permission, the employee brought an NSA laptop computer to ASI that he had used in his employment at NSA.  Between October 1 and October 23, 2006, the employee transferred some files from the NSA laptop to an ASI laptop and then used a scrubbing program to delete all files from the NSA laptop and he returned it to NSA on October 23, 2006.

The trial court entered a temporary restraining order on November 15, 2006 which, inter alia, prohibited the employee from disposing of or using NSA trade secrets or confidential information.  The order also required the employee to return to NSA all information that he deleted from the NSA laptop and transferred to any other device. The employee denied that he had transferred any NSA information to any other device and the lawyer filed an answer and counterclaims on December 6, 2006 denying that any proprietary or other confidential information of NSA was uploaded and given to ASI.

On November 17, 2006, without the lawyer’s knowledge, the employee used a scrubbing program to delete some NSA files from the ASI computer.  On March 7, 2007, NSA’s counsel sent an e-mail to the lawyer e-mail that NSA would be filing a motion to gain access to his client’s computers and that the lawyer was required to inform the employee and ASI to preserve any documents “that relate to the case,” including any on the employee’s ASI laptop. The lawyer took no action and did not advise employee or his employer not to delete relevant files from the ASI laptop.

NSA filed a motion to compel production of ASI’s computers for forensic examination.  On April 12, 2007, again without the lawyer’s knowledge, but on the same day as a hearing on discovery issues, the employee used a scrubbing program to delete files from his ASI computer.  After the hearing on April 13, 2007, the trial court ordered that the hard drive be preserved and that NSA’s forensic expert be given access to the employee’s ASI computer.  After a further hearing on May 2, 2007, the trial court amended the order to allow the hard drive to be copied but to limit the expert’s examination of the copy to any NSA proprietary or confidential files copied to the computer in September or October 2006.

After the April 13, 2007 order, the employee told the lawyer that there were confidential documents and information on his laptop which was related to ASI and unrelated to NSA and which should not be disclosed to NSA or its expert.  The lawyer did not ask about the nature or content of the documents and he also apparently believed that the ASI confidential information was not relevant to the litigation; therefore, notwithstanding the court order, he advised the employee that he could scrub the confidential information from his laptop. 

Because of the lawyer’s “lack of experience in electronic discovery, (he) failed to appreciate that the order of April 13, 2007, required the entire hard drive to be preserved for the NSA expert, not just documents obtained from NSA.  The (lawyer) advised the employee that he should scrub files unrelated to NSA without first conferring with experienced counsel or conducting research as to his client’s legal obligations and without any attempt to confirm that the materials to be deleted were as represented.”  The day before the expert’s examination of the computer, the employee scrubbed additional files from the ASI computer. 

On December 6, 2007, after being advised of the series of deletions, the trial court issued a memorandum and order finding that the employee had engaged in spoliation of evidence.  The trial court declined to enter a default judgment against the employee, but granted additional discovery and access to the ASI computer for whatever additional analysis that the plaintiff could perform.  The lawyer then withdrew from the representation in October 2010 and another lawyer entered an appearance.

The lawyer and Massachusetts disciplinary board lawyer entered into a stipulation of facts and disciplinary violations and a joint recommendation for a public reprimand with attendance within one year at two CLE programs, one on electronic discovery and one on ethics and law office management.  The board accepted the parties’ recommendation and imposed a public reprimand subject to the conditions on September 23, 2013 and the opinion adopted the terms of the stipulation.

“The (lawyer’s) advice to his client scrub certain files from the hard drive of a laptop in contravention of a court order constituted unlawful obstruction of another party’s access to evidence, in violation of Mass. R. Prof. C. 3.4(a) (violate an order of a tribunal). The respondent’s failure to adequately communicate to his client his obligations under the court order and the potential prejudice of altering property subject to the court order was conduct in violation of Mass. R. Prof. C. 1.4 (communication).  Finally, the respondent’s conduct of handling a matter that he was not competent to handle without adequate research or associating with or conferring with experienced counsel, and without any attempt to confirm the nature and content of the proposed deletions, was conduct in violation of Mass. R. Prof. C. 1.1 (competence).”

In aggravation, “the (lawyer’s) condoning the alteration of the hard drive had the potential to prejudice the plaintiff’s pursuit of discovery, and the client was found to have engaged in spoliation. Much of the spoliation, however, took place prior to the respondent’s advice, and the trial court ultimately found that even assuming that client transferred confidential information to ACI, the plaintiff did not prove that the client’s conduct caused any damages to NSA.  In mitigation, the r(lawyer) was relatively inexperienced in the relevant area of discovery practice.”

Bottom line:  This lawyer may have been acting in good faith when he acquiesced to (or gave advice to the client to) scrub electronic files in violation of a court order; however, this case again illustrates how a lack of competence related to orders to preserve electronic and digital files can result in the discipline of a lawyer. 

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, Communication with clients, lawyer electronic discovery violation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions, Lawyer violation of court order

Florida Supreme Court rejects recommended 90 day suspension and imposes 1 year suspension for lawyer’s misconduct in immigration and malpractice matters

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida which rejected a referee’s recommended 90-day suspension as too lenient and imposed a one (1) year suspension for the lawyer’s serious misconduct in an immigration matter and in a subsequent malpractice suit.  The opinion is The Florida Bar v. Whitney, No. SC11-1135.  The opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1135.pdf 

According to the opinion, the referee found the following facts:  the client (Dr. Hill) hired the lawyer on January 19, 2004 to provide immigration and legal advice.  At the initial meeting, the lawyer was told that a Ms. de Oliveira (who was at the meeting) was a native of Brazil and was in the United States illegally for the third time and that she had received a letter from the United States Department of Justice banning her from the country for twenty years because of her two previous illegal entries. The lawyer was also told that the client intended to marry Ms. de Oliveira, but that they were not engaged and the client had only known her since November 2003 when she moved into his house.  Based upon the meeting, a fee agreement was prepared and executed with a flat fee of $15,000.00 and a $5,000.00 deposit for future costs.

The fee agreement provided that the lawyer would represent Ms. de Oliveira (not the client) “in regard to all matters pertaining to her immigration status” and that the lawyer’s obligations under the contract would terminate “upon decision of the Office of the Attorney General granting or denying permission for (Ms. de Oliveira) to reenter the United States.”  The client provided the lawyer with two checks, one dated January 26, 2004, in the amount of $10,000.00, and the other dated February 6, 2004, in the amount of $9,365.00 and also paid for an airline ticket for the lawyer to travel to Brazil.  The lawyer deposited both checks into his personal checking account and used the funds “to pay his personal bills because respondent was experiencing financial problems at the time.”

The lawyer traveled to Brazil twice in early 2004 to allegedly research the requirements for the client and Ms. de Oliveira to marry in Brazil; however, the referee found that this information was easily obtained without leaving the country. The lawyer claimed that one of the trips to Brazil was to obtain information on rental properties for Ms. de Oliveira and to verify her Brazilian documents.  Since the location that the lawyer found was in an area other than where Ms. de Oliveira lived in Brazil, the referee found that that the trip was for a purpose other than for the client’s case.  In September 2004, the lawyer took Ms. de Oliveira’s Brazilian passport, which she advised was a falsified document, and other original Brazilian documents. The referee found that the lawyer “took no further meaningful action with respect to Ms. de Oliveira’s immigration matter.”

The client contacted the lawyer in late 2004 or early 2005 after he had not received any communication since hiring him in January 2004.  The lawyer said that he had not initiated the process to have Ms. de Oliveira remain in the United States or to reenter legally so that they could be married in the United States, that Ms. de Oliveira needed to marry the client in Brazil, and that he would only proceed further after the client paid an additional fee of between $40,000.00 and $60,000.00.  The client then fired the lawyer and demanded a full refund of the fees and costs that he had paid and the return of Ms. de Oliveira’s documents.  The lawyer refused and stated that he had earned the fees and costs.  Ms. de Oliveira sent the lawyer a letter dated February 22, 2005 demanding the return of her original documents and the lawyer then complied with that request and Ms. de Oliveira returned to Brazil in or around April 2005.  The referee found that the lawyer failed to provide an accounting to the client upon his request and failed to timely return Ms. de Oliveira’s documents.

The client filed a civil lawsuit against the lawyer in July 2005 alleging breach of contract, legal malpractice, and unjust enrichment.  The lawyer failed to appear for his properly noticed December 21, 2005 deposition and never contacted opposing counsel or filed a notice of unavailability.  The lawyer also did not produce any documents in the request for production dated September 20, 2005, and which were ordered to be produced by December 19, 2005.  He did not produce any documents until January 4, 2006 and never produced all of the documents.

A hearing was held on the client’s second motion to compel on January 18, 2006 and the lawyer was admonished by the court and advised to fully cooperate with discovery.  At the lawyer’s deposition on January 27, 2006, the lawyer arrived with a client file containing documents that he had not previously produced pursuant to the request for production.  The lawyer produced the documents with redactions without making an objection or stating that a redaction had been made.  The lawyer also failed to produce credit card statements or receipts responding to the client’s first set of interrogatories that the circuit court had ordered him to produce. 

The referee found that “(the lawyer) engaged in a course of conduct (in the malpractice litigation) where he was uncooperative in coordinating the scheduling of hearings”, that he testified falsely and deceptively about advertising and the name of his law firm at his deposition.  He also testified falsely that the only pending litigation in which he was involved was a lawsuit against him by U.B. Vehicle Leasing, Inc. related to a dispute as to the mileage of a car even though a mortgage foreclosure action had been filed against him on November 1, 2004 and was pending at the time of the deposition.  The lawyer further falsely testified that the mortgage on his home had not been in foreclosure.  The referee found the lawyer’s failure to reveal the existence of the foreclosure action “particularly relevant to (the lawyer’s) lawsuit given (the lawyer’s) sworn deposition testimony on January 27, 2006, that he deposited the fees and costs the client paid him into his personal checking account and used the funds to pay, among other things, the mortgage on his home.

The trial court in the malpractice action entered an order granting a motion for sanctions and entry of default judgment on May 30, 2006, striking the lawyer’s defenses and awarding attorney’s fees and costs to the client.  The court also found that “(the lawyer) had ‘willfully failed and refused to comply with previous order (sic) of this Court, failed and refused to participate in pretrial discovery and provided falsified documents’ in the case.”  The trial court entered a final judgment against the lawyer on October 4, 2007, including a principal amount of  $20,000.00, which the lawyer paid to the client.  The lawyer appealed to the Fifth District Court of Appeal, which upheld the final judgment but remanded for a determination of the correct amount of attorney’s fees.  A Second Amended Final Judgment was entered on June 15, 2011 and, as of the date of the referee’s report, the lawyer had not paid any of the additional $24,246.00 in attorney’s fees, expert fees, and taxable costs awarded to the client.

The opinion concluded that the lawyer had “accepted a substantial fee from his client but did not perform notable work in furtherance of that representation. He also misused his client’s funds by twice traveling to Brazil, once for no apparent case-related reason and once as unnecessary to obtaining the information sought.  While the immigration issue may have been complicated, Respondent did not communicate that issue to Dr. Hill and Ms. de Oliveira.  Next, with respect to the malpractice action, Respondent failed to produce documents, did not appear for his first noticed deposition, and offered frivolous responses to the interrogatories.  Respondent has not paid the portion of the judgment awarding attorney’s fees and costs in the malpractice action, and continues to refer to his conduct as negligent.  Based upon the facts in this case and established case law, we find the referee’s recommended sanction of a ninety-day suspension unsupported and instead impose a one-year suspension.”

Bottom line:  This appears to be a somewhat blatant case of a lawyer taking advantage of a client, misusing client funds, and abusing the judicial system.  Based on the facts found by the referee as described in the opinion (and adopted by the court), it is surprising that the court did not impose a more severe sanction. 

Let’s be careful out there!                        

Disclaimer:  this Ethics Alert 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, EsquireLaw Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 3375

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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