Monthly Archives: April 2014

D.C lawyer disbarred for, inter alia, filing frivolous motions, failing to appear, introducing confidential records into public record, and fabricating appeal record

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Washington, D.C. Court of Appeals opinion disbarring a lawyer who, inter alia, filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness, failed to file certain motions which prejudiced the client, introduced the client’s confidential medical records into the public record, and sought and received a six month continuance of the client’s trial without her consent. In another matter, the lawyer failed to include fact witnesses in a pretrial statement which caused his client’s case to be dismissed and then fabricated a pretrial statement on appeal. The opinion is In re Ellis S. Frison, Jr., Case No. 13-BG-545 (D.C. Ct. of Appeals 4/24/14) and the opinion is here: http://www.dccourts.gov/internet/documents/13-BG-545.pdf

According to the opinion, the lawyer represented a client in an employment discrimination suit starting in September 2005, until she discharged him in November 2008. During the representation, the lawyer filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness who was hostile to the client, failed to file certain motions which prevented the client from presenting evidence for her retaliation claims, placed the client’s confidential medical records into the public record without justification, and sought and received a six month continuance of the client’s trial without consulting with her or obtaining her consent.

After the client discharged the lawyer in November 2008, he threatened her and refused to release her file to her. She then filed a Bar complaint and initiated an arbitration claim seeking repayment of some of the fees she had paid to the lawyer. The lawyer then submitted inconsistent bills that he had never given the client and which inflated the amount owed under the initial fee agreement.

After an award was entered against the lawyer, he filed a civil suit against her using the same falsified billing records that the arbitrator had rejected. He also submitted similar falsified billing records to the Bankruptcy Court, where he had filed a claim against the client. The opinion states that “(the lawyer) repeatedly submitted (the client’s) confidential medical records subject to attorney-client privilege into the public records in these and other proceedings.

In a second matter, the lawyer represented a client and her minor daughter in a personal injury action. He failed to identify any fact witnesses in the joint pretrial statement and was not able to put any fact witnesses on at trial to establish that the defendant had caused the client’s daughter’s injuries. The court then entered a judgment as a matter of law for the defendant. On appeal, respondent submitted a fabricated joint pretrial statement that included fact witnesses, and told the appeals court (the same court that issued this opinion) at oral argument that he had sent the fabricated document to opposing counsel prior to trial.

Bottom line: This lawyer certainly stretched the limit of how many Bar rules can be found to have been violated in a single Bar discipline matter. The misconduct also occurred at the trial and appellate levels and, amazingly, the lawyer fabricated a document in an appeal before the appellate court which determines discipline in D.C. Bar cases.

Let’s be careful out there.

Disclaimer: this Ethics Alert 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
http://www.jac-law.com

1 Comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Attorney/client confidentiality, Attorney/client privilege and confidentiality, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements in response to Bar complaint, Lawyer false testimony, Lawyer lack of competence, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions, Privilege

Iowa Supreme Court dismisses Bar complaint against a lawyer who was unknowingly involved in fraudulent transfers of a client’s assets

Hello and welcome to this Ethics Alert blog which will discuss the recent Iowa Supreme Court opinion dismissing a disciplinary action against a lawyer who “unknowingly” participated in the fraudulent transfers of a client’s assets to the client’s wife and relatives to avoid creditors. The disciplinary opinion is Iowa Supreme Court Attorney Discipline Board v. Mason James Ouderkirk, No. 13–1124 (March 28, 2014) and the disciplinary opinion is here: http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20140328/13-1124.pdf

According to the opinion, the lawyer represented a wealthy farmer (Rodney Heemstra) who shot and killed his neighbor (Tommy Lyon) and was ultimately convicted of involuntary manslaughter. The lawyer represented the client at the outset of the criminal proceedings and during part of the civil wrongful-death litigation, which later resulted in a multimillion dollar judgment against the client who apparently vowed that the widow “would not get one dime” of his money. The lawyer was involved in the transfers of the client’s assets to revocable trusts, his wife, and relatives.

The deceased neighbor’s widow filed a civil action against the client and several relatives and the court ultimately found that the transactions were fraudulent. Although he was not named as a defendant in the subsequent civil litigation, the lawyer was required to respond to a motion to compel his testimony under the crime-fraud exception of the privilege. The court ruled in that case that “(b)ased on the current state of the record in this case, the court does not find that the Plaintiffs have made a prima facie showing of fraud encouraged or participated in by (the lawyer’s client).”

The deceased neighbor’s widow also filed a Bar complaint against the lawyer and he was charged with violating multiple Bar rules. After a 2 day evidentiary hearing, the Iowa Grievance Commission found that the lawyer had been deceived and was told that there were had valid reasons for transferring the property and that much of the property was being sold to a bona fide purchaser.

The commission also found that, although the lawyer lacked actual knowledge of the fraudulent nature of the transfers, he failed to recognize the “red flags” of one of the fraudulent conveyances and violated several Bar rules, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration for justice. The commission found this conduct to be “an uncharacteristic lapse of his professional judgment” and recommended a public reprimand.

The Supreme Court opinion stated that: “(f)undamentally, it was the (client’s) misrepresentations that triggered the lengthy court proceedings to unwind their fraudulent transactions, not (the lawyer’s) conduct. The opinion concluded that the Board failed to prove “by a convincing preponderance of the evidence” that (the lawyer’s) conduct violated any Bar Rules and dismissed the Bar complaint with prejudice.

Bottom line: This case is unusual since there are very few published Bar discipline opinions which outright dismiss a complaint against a lawyer. This opinion is very lengthy and provides great detail regarding the reasons for the dismissal and citing to numerous cases to support it. Notwithstanding the dismissal of the complaint, the lawyer was required to retain a lawyer and defend himself in the lengthy Bar discipline matter and respond to the motion to compel his testimony in the civil litigation.

Be careful out there!

Disclaimer: this Ethics Alert 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
http://www.jac-law.com

NOTICE OF CONFIDENTIALITY: This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules. If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited. If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system. Thank you for your cooperation.

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer dismissal of Bar complaint

South Carolina Supreme Court bans Florida lawyer from practicing law who solicited over the internet and represented clients in that state

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the South Carolina Supreme Court which prohibited a Florida lawyer not admitted in that state from admission to practice for soliciting business over the internet and representing clients in that state and failing to respond to the allegations. The opinion is: In the Matter of Charles William Berger, Case No. 27377 (April 9, 2014) and the opinion is at: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27377.pdf.

According to the opinion, the South Carolina Office of Disciplinary Counsel (ODC) filed formal charges against the lawyer in May 2013 alleging that, inter alia, he solicited clients in South Carolina through the “Internet” and represented clients in two separate foreclosure matters in South Carolina. The lawyer did not respond to the charges and was deemed to have admitted the factual allegations.

Following an evidentiary hearing in which the lawyer did not appear, a disciplinary hearing panel issued a report recommending that the lawyer: 1) be prohibited from seeking any form of admission in South Carolina for five years; 2) reimburse all fees and costs paid by the South Carolina clients harmed by his misconduct within thirty (30) days of the date of discipline; and 3) be required to pay the costs of the proceedings within thirty (30) days of the date of discipline. The lawyer did not file any exceptions to the report. The opinion stated:

“We find respondent’s misconduct particularly egregious. Although not admitted to practice law in South Carolina, respondent nevertheless engaged in the practice of law in this state. He represented clients in South Carolina. He or his firm provided advice to clients and prepared and filed pleadings, some of which were frivolous, on behalf of his clients. Although he prepared and filed motions, respondent neglected to attend the motion hearings. Moreover, respondent charged and collected unreasonable fees from clients for the minimal work he did perform and then continued to collect fees from clients even after his representation ceased. When disciplinary charges were filed against him, respondent ignored the matter by failing to respond, participate in the investigative process, or appear for the hearing.

If respondent were admitted to practice law in South Carolina, his conduct would warrant disbarment. Since he is not admitted in South Carolina, we find it appropriate to permanently debar him from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing him to seek admission. We further order respondent to fully reimburse all fees and costs paid by the clients in this matter and to pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission within thirty (30) days of the date of this opinion. Should he wish to seek admission in the future, the burden of proof shall be on respondent to establish by clear and convincing evidence that he is of sufficient character and fitness. Under no circumstances shall respondent be eligible to seek admission until he has fully reimbursed his clients for all fees and costs paid in this matter and paid the costs of this proceeding. (emphasis supplied)

Bottom line: Through the magic of the “Internet”, this lawyer was able to obtain and represent clients in foreclosure matters in South Carolina, even though he was not admitted in that state and it appears that he won’t be practicing law in that state anytime in the near future. Multijurisdictional practice has certainly not evolved to include this type of practice and it will be interesting to see if Florida takes any disciplinary action against him.

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, 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
http://www.jac-law.com

Leave a comment

Filed under joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer sanctions for unlicensed practice of law, Lawyer unlicensed practice of law, Unauthorized practice of law

Illinois Review Board recommends one year suspension for a lawyer’s misconduct while representing himself in a small claims collection matter

Hello and welcome to this Ethics Alert blog which will discuss the recent Illinois Review Board Report and Recommendation which recommended a one year suspension with six months stayed and probation for a lawyer’s misconduct. The case is In re Brian Keith Sides, Commission No. 2011PR00144 (March 31, 2014) and the Report is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11301.

According to the Board’s Report, the lawyer was representing himself in a small claims collection litigation matter which began in 2006. In January 2011, following a hearing at which the lawyer failed to appear, the judge (Judge Kennedy) issued an order denying the lawyer’s outstanding motions. The lawyer then filed a motion to reconsider alleging that the judge had improperly ruled on the motions since the case had been set only for a status conference. In the motion, the lawyer stated: “Such back-alley justice makes a mockery of the legal procedures that gives parties notice of hearing and a right to be heard, procedures traditionally sets our legal system form (sic) that of oppressive dictorial (sic) regimes.” He also alleged that all of the judges in the Illinois Sixth Circuit had colluded against him

According to the Report, during the lawyer’s unsuccessful attempts to vacate the judgment, he also made the following claims and statements in various pleadings:

1. “Judge Leonhard erred by requiring the Respondent “to testify in open court, with regard to his social security number” and “demanded that [Respondent] provide an answer in open court as to his social security number”
2. Judge Leonhard was “purposely manipulating the record”;
3. The judge engaged in a “deliberate effort to destroy [Respondent’s] case and/or a deliberate effort to intimidate [Respondent] from further pursuing his rights by giving [Respondent] an introductory lesson in the abusive powers of the Judge.”
4. The proceedings were a “sham” and the judge was a “prejudicial judge”;
5. Judge Leonhard made sure Respondent’s testimony was not on the record.
6. Judge Leonhard improperly left the bench and walked out of the courtroom while the process server was on the stand; and
7. In describing Judge Leonhard’s abuse, Respondent questioned whether Judge Leonhard might be at a “low point” in his career and might need assistance with stressors in his life, referencing the Lawyers Assistance Program.”

The Illinois Hearing Board found that the above statements were false. In December 2011, the lawyer filed a motion to recuse the judge and, in the motion, he referred to the judge as a “scourge on his profession” and to both the judge and opposing counsel as “predators”. The motion also called the opposing counsel a “susceptible boy-lawyer” who learned from the judge the power of corruption so he “can accept a judgeship, representing the next generation of Illinois corruption.”

The Hearing Board found that the lawyer’s statements regarding the integrity of the judges violated Rule 8.2(a) and 8.4(d) and that he made a false statement of fact to a tribunal in violation of Rule 3.3(a)(1) related to his statement that all of the judges in the Sixth Circuit colluded against him, since conceded that he had no evidence of the alleged collusion. The Hearing Board found that the lawyer did not violate Rule 4.4(a) (the statements served no substantial, legitimate purpose other than to harass, demean and insult the judges and opposing counsel); however, the Review Board’s Report found that the lawyer violated that rule (and all of the others) and recommended a one year suspension (with six months stayed) and a one year probation to follow under the supervision of a licensed Illinois lawyer.

Bottom line: You know the old cliché “…every man who is his own lawyer, has a fool for a client.” Henry Kett, 1814 (restated by Abraham Lincoln). One of the reasons for this cliché is the very real possibility/probability that the person who represents him or herself will become too emotional about the matter. It appears that this may have been exactly what happened to this lawyer, whose intemperate criticism of the judge (and opposing counsel) may have bought him a substantial suspension from practice. Stay tuned…

…and please 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
http://www.jac-law.com

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer false statements, Lawyer impugning qualifications or integrity of judge, Lawyer misrepresentation, Lawyer sanctions

Florida Supreme Court rejects recommended 91 day suspension and imposes 3 year suspension on lawyer for filing frivolous pleading and making false criminal allegations

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Florida Supreme Court which rejected a referee’s recommended 91 day suspension and imposed a one (3) year suspension for the lawyer’s misconduct in filing frivolous pleading and false criminal allegations against opposing party who obtained a sanctions judgment against him. The opinion is The Florida Bar v. Committe, No. SC11-468 (Fla. April 3, 2014) and the full opinion is at: http://www.floridasupremecourt.org/decisions/2014/sc11-468.pdf.

According to the opinion, in March 2011, The Florida Bar filed a complaint against the lawyer alleging the following facts:

“In December 2002, Committe filed a civil lawsuit on behalf of a client against the defendant. The complaint alleged two counts, one for malicious or tortious interference with a business relationship, and one for slander. Counsel for the defendant filed a motion for summary judgment. The circuit court held a hearing on the motion and, in June 2004, issued a ‘Final Summary Judgment’ order in favor of the defendant. In relevant part, the circuit court held that there was no admissible evidence upon which a cause of action for either count alleged in Committe’s complaint could stand. The court further held that even if certain evidence would be admissible over a hearsay objection, there was nothing to indicate that any of the defendant’s statements were false or malicious.

The circuit court reserved jurisdiction to rule on the defendant’s motion for attorney’s fees and costs. Committe did not appeal the Final Summary Judgment order at that time. In October 2004, the circuit court held a hearing on the defendant’s motion for attorney’s fees. Following the hearing, on October 29, 2004, the court entered an Order on Defendant’s Motion for Attorney Fees and Costs. In the order, the court held that Committe and his client knew or should have known that the claims asserted in their complaint were not supported by the material facts; would not be supported by the application of then-existing law to those facts; and were frivolous.

Accordingly, the circuit court awarded the defendant $13,000.00, to be paid in equal shares by Committe and his client. Subsequently, in January 2005, the circuit court entered a “Final Judgment” in the civil case. Committe appealed the order to the First District Court of Appeal. In February 2007, the district court per curiam affirmed the circuit court’s ruling. Following the appeal, the defendant, who was by then not represented by an attorney, sent Committe two letters, one in December 2007 and one in May 2008, seeking payment of the attorney’s fees and costs awarded to her in the circuit court’s October 2004 order. Several days after receiving her May 2008 letter, Committe wrote to the United States Attorney, accusing the defendant of attempting to extort money from him and requesting that she be criminally prosecuted.”

The referee’s report recommended that the lawyer be found guilty of violating Rules 4-3.4(g) (present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter) and 4-8.4(d) (engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) and that he gave false testimony during the disciplinary hearing; however, he found the lawyer not guilty of violating Rules 4-3.1 (meritorious claims and contentions) and 4-3.4(c) (knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. The referee recommended that the lawyer be suspended for ninety-one (91) days.

In July 2013, the Court issued an order immediately suspending the lawyer and directing him to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction imposed. The opinion approved the referee’s findings of fact and that the lawyer be found guilty; however, the opinion found him guilty of violating Bar Rules 4-3.1 and 4-3.4(c) and also disapproved the referee’s recommended discipline. According to the opinion,

“In the case presented here, Committe filed a frivolous and meritless lawsuit against the defendant, wasting both her time and resources and those of the court system. The circuit court dismissed the suit and ordered Committe to pay a portion of the defendant’s attorney’s fees and costs; however, Committe has refused to comply with the order for years. When the defendant attempted to collect the money she was owed, Committe reported her to the United States Attorney for alleged extortion.

Considering these events together, it is clear that Committe’s misconduct is serious and egregious, and that it caused harm to both the defendant and the court system, warranting a severe sanction. We have also considered the significant aggravating factors found by the referee: a disciplinary history; a pattern of misconduct; multiple offenses; submission of false evidence or statements during the disciplinary process; vulnerability of the victim; and substantial experience in the practice of law.

Committe’s conduct in this case, considered together with his disciplinary history, his false statements to the referee, and the other aggravating factors, clearly demonstrates that he is abusive of the legal process. We conclude that this type of serious misconduct and unethical behavior warrants a more severe sanction than that recommended by the referee. Accordingly, we disapprove the referee’s recommendation, and instead suspend Committe for three years.

Bottom line: This case illustrates how a lawyer can get into a serious ethical quandary by filing a lawsuit which is apparently not supported by “admissible evidence upon which a cause of action…could stand”, then more seriously compounding his potential culpability by apparently refusing to pay the judgment that was rendered against him for the frivolous filing and then, astoundingly, by writing to the U.S. Attorney “accusing the defendant (the opposing party) of attempting to extort money from him and “requesting that she be criminally prosecuted” when she tried to collect on the judgment almost 4 years later.

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, 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
http://www.jac-law.com

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, dishonesty, Florida Bar, Florida Lawyer Ethics and Professionalism, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer filing frivolous pleading, Lawyer misrepresentation, Lawyer sanctions