Monthly Archives: August 2014

Kentucky Supreme Court upholds ethics opinion finding that a waiver of ineffective assistance claims as part of criminal plea bargain violates ethics lawyer rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Kentucky Supreme Court opinion which upheld an ethics opinion stating that waiver of ineffective assistance claims as part of plea bargain violates lawyer ethics rules. The opinion is: United States of America v. Kentucky Bar Association, Case No. 2013-SC-000270-KB (August 21, 2014) and is at: http://opinions.kycourts.net/sc/2013-SC-000270-KB.pdf

The U.S. Attorney for both the Eastern and Western Districts of Kentucky requested that the Kentucky Supreme Court review Kentucky Bar Association Ethics Opinion E-435, which opined that the use of ineffective assistance of counsel waivers in plea agreements violated the Kentucky Rules of Professional Conduct. The ethics opinion stated that the use of the waivers in plea bargain agreements creates a non-waivable conflict of interest between the defendant and his attorney, limits the attorney’s liability for malpractice, and causes defense counsel to violate the ethics rules.

According to the Kentucky Supreme Court opinion, “(u)nder our ethical rules, ‘(i)t is professional misconduct for a lawyer to:…knowingly assist or induce another (attorney) to” “violate or attempt to violate the Rules of Professional Conduct…. Providing context to the language, knowing is defined as ‘(h)aving or showing awareness or understanding’…and induce is roughly defined as to ‘influence or persuade…’ Prosecutors offering plea agreements with IAC waivers surely violate this rule.”

“Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such. The plea agreement often comes with a take-it-or leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform unethically in order to comply with other ethical or constitutional obligations would not be “influencing or persuading” a fellow attorney to violate our ethical rules. Contrary to the United States’ assertion, it is not necessary that the prosecutor know defense counsel has been ineffective in order to satisfy the rule. Instead, the plain language of the rule indicates that what is required is for a prosecutor to understand his conduct will result in a fellow attorney violating our ethical rules.”

“(Ethics Opinion) E-435 additionally found the United States plea-bargaining practice violated -3.8 of our ethical rules. As a result of their weighty role in our justice system, -3.8 places special responsibilities on prosecutors. E-435 holds the insertion of IAC waivers in plea agreements violates the “spirit” of -3.8 and prosecutors disregard their role as a “minister of justice” when using such waivers. In truth, prosecutors are expected to be more than “simply…an advocate.” Demanding a defendant waive a potential IAC claim—or, worse, all collateral attack—may provide finality but at too high of a cost. A defendant’s conviction is essentially unappealable as a result of the waiver in question. A prosecutor is charged with “see(ing) that the defendant is accorded procedural justice,” and we simply do not believe the use of IAC waivers lives up to that lofty expectation. Accordingly, we affirm E-435 with respect to prosecutors.”

“We are duty-bound to regulate the legal profession within our borders. Today, we are proactive in that role. Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules. Accordingly, either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including (ineffective assistance of counsel), violates our Rules of Professional Conduct.

Bottom line: This Kentucky Supreme Court opinion confirms that waiver of ineffective assistance claims as part of plea bargain violates Kentucky lawyer ethics rules. Florida Bar Ethics Advisory Opinion 12-1 (2012) reached the same conclusion and also opined that a “prosecutor may not make an offer that requires the defendant to expressly waive ineffective assistance of counsel and prosecutorial misconduct because the offer creates a conflict of interest for defense counsel and is prejudicial to the administration of justice.”

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

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Filed under Attorney Ethics, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Prosecutorial misconduct ethics

North Carolina lawyer reprimanded for sending ex-parte e-mails to judge and law clerk in “extremely contentious” divorce matter

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent reprimand of a North Carolina lawyer for sending ex-parte e-mails to the judge and the judge’s law clerk in a “protracted and extremely contentious domestic case”. The reprimand is: In the Matter of Claire J. Samuels, NC Case No. 13G0801 (May 23, 2014) and is at: http://www.ncbar.com/orders/samuels,%20claire%20reprimand%2013g0801.pdf

According to the reprimand, the lawyer represented the wife in a protracted and extremely contentious domestic case against the husband, who apparently was also a lawyer. On “numerous occasions”, the lawyer “argued the merits of the case through emails to the judge and her clerk. The emails were improper and violated Rules 3.S(a)(3) and 8A (d) of the Rules of Professional Conduct.” The lawyer stated in her response to the Bar grievance that she was “only responding, as an advocate for (the) client, to the e-mails that (the husband) first presented to the court.”

The reprimand states that “(t)he Grievance Committee believed that because you were an advocate for your client, you were obligated to take the high road and not engage in those improper communications with (the husband). Finally, the Grievance Committee was concerned about your unprofessional conduct as exhibited in an April 26, 2013 email to (the husband) where you lost your objectivity as an attorney and got “personal” with (the husband). In that email you stated, ‘You’re a terrible husband, father, lawyer, and human being.’ The Committee cautions you to maintain objectivity and professionalism, even in the face of a stressful and difficult case.

Bottom line: This case apparently involved a pro se opposing party (who was a lawyer) who allegedly started the ex-parte communications; however, the reprimand confirms that, regardless of who starts it, the lawyer is still not permitted to engage in ex-parte contact with a presiding judge. Oh, and lawyers also should probably not send an e-mail to the opposing party stating “You’re a terrible husband, father, lawyer, and human being.”

Let’s please 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

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper ex parte contact with judge, Lawyer Professionalism, Lawyer sanctions

South Carolina Supreme Court prohibits another Florida lawyer from practicing law who solicited over the internet, made misrepresentations, and represented clients

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the South Carolina Supreme Court which prohibited another Florida lawyer who was not admitted in that state from admission to practice for soliciting over the internet and representing clients, making false statements, and failing to respond to the allegations, this time permanently. The opinion is: In the Matter of Alma C. Defillo, SC Case No. 27431 (August 13, 2014) and is at: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27431.pdf.

According to the opinion, formal disciplinary charges were filed against the lawyer, who was licensed to practice in Florida but not in South Carolina. The first count alleged that the lawyer opened an office in Greenville, South Carolina in 2012, “ostensibly to handle federal immigration matters. Respondent had no law partners or associates who were licensed in South Carolina except for a period of approximately fourteen days in August 2012. Respondent offered to provide legal services in South Carolina using methods specifically targeted at potential clients in South Carolina, including a law firm website, business cards, print advertisements, and radio commercials…”

“In connection with her representation of two clients in federal immigration matters, respondent sent letters to judges for the state circuit court in Greenville, requesting certification that the clients were crime victims. The letterhead contained the phrase “Attorneys and Counselors at Law” when, in fact, respondent had no partners or associates at the times the letters were written. Respondent’s letterhead included her Greenville office address without indicating the jurisdictional limitations on her ability to practice law.”

“Respondent advertised her law firm through the use of a website available to residents of South Carolina. Included on the website are references to respondent’s Greenville office. Respondent’s website contains material misrepresentations and omits facts necessary to make the contents considered as a whole not materially misleading. On her website, respondent advertises her office in Greenville but fails to state that she is not licensed to practice law in South Carolina or to otherwise set forth the jurisdictional limitations on her practice in this state. Further, respondent’s website is not limited to the promotion of her federal immigration practice as she advertises her experience in both criminal and family law and offers to ‘analyze the facts of [her prospective client’s] case by applying current…State Laws.’ In addition to false and misleading statements regarding offers to practice in this jurisdiction, respondent repeatedly refers to the firm’s “lawyers” and “attorneys” when, in fact, respondent is a sole practitioner with no partners, only sporadically employing associates in her law firm.

“Respondent’s website compares her services with other lawyers’ services in a way that cannot be factually substantiated by stating her law firm is ‘unique’ because she and her staff are fluent in Spanish and English. Additionally, respondent includes forms of the words ‘specialist’ and ‘expert’ on her website even though she is not a specialist certified by this Court. Respondent promotes her law firm by distributing printed business cards. The business cards advertise her office in Greenville without disclosing the fact that respondent is not licensed to practice law in South Carolina or disclosing the geographical limitation of her law practice in this state.

“Respondent promotes her law firm by publication of print advertisements in Spanish-language magazines and other periodicals distributed in South Carolina. Respondent’s print media advertisements lists her office in Greenville without disclosing the fact that she is not licensed to practice law in South Carolina or disclosing the jurisdictional limitations on her practice in this state. Respondent promotes her law firm by broadcasting commercials on Spanish-language radio stations in South Carolina. Respondent’s radio commercials include reference to her office in Greenville without disclosing the fact that she is not licensed in South Carolina or disclosing the geographical limitations of her practice.”

The second count stated: “Respondent initially cooperated with the disciplinary investigation by timely submitting her responses to the notice of investigation and ODC’s subpoena for her client files and record of advertising dissemination. However, respondent failed to submit a response to the supplemental notice of investigation served on her on April 5, 2013. As a result of her failure to submit a response to the supplemental notice of investigation, ODC issued a notice for respondent to appear for an interview on May 23, 2013. Respondent contacted ODC and requested the interview be postponed.

“Pursuant to that request, ODC issued an amended notice to appear, setting the interview for May 31, 2013. Respondent failed to appear, although her husband called ODC thirty-two minutes before the scheduled interview time to state respondent would not be attending the interview due to a court appearance in Georgia. Respondent’s husband was asked to instruct respondent to contact ODC after her court appearance in Georgia to reschedule the interview. As a result of respondent’s failure to contact ODC pursuant to this instruction, ODC issued a third notice to appear, setting the interview for July 2, 2013. Respondent did not appear on July 2, 2013, and has not contacted ODC with regard to this disciplinary matter since that time.

“Respondent made the following false or misleading statements in her response to the initial notice of investigation that she submitted to ODC: My practice is limited to Immigration Law. I have [not] portrayed myself to practice any other law but federal immigration law. At no time I have portrayed myself to represent residence [sic] of South Carolina with any legal services other than those that are exclusively related to immigration law. I solely practice federal immigration law.”

The SC disciplinary hearing panel found that the lawyer was subject to discipline pursuant to SC Bar Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct or other rules of this jurisdiction regarding professional conduct of lawyers) and Rule 7(a)(3) (it shall be ground for discipline for lawyer to willfully violate valid order of Commission or hearing panel, willfully fail to appear personally as directed, or knowingly fail to respond to lawful demand from disciplinary authority to include request for response or appearance) and that she violated SC disciplinary rules related to advertising, false statements and other rules.

The opinion stated that South Carolina has jurisdiction over all allegations that a “lawyer” has committed misconduct and that the term “lawyer” includes “a lawyer not admitted in this jurisdiction if the lawyer …offers to provide any legal services in this jurisdiction [and] anyone whose advertisement or solicitations are subject to Rule 418, SCACR Rule 2(q).” The opinion also states that the “authority to discipline lawyers and the manner in which the discipline is imposed is a matter within the Court’s discretion. In the Matter of Berger, 2014 WL 1386688 (2014); In the Matter of Van Son, 403 S.C. 170, 742 S.E.2d 660 (2013). The misconduct in this matter is similar to that in In the Matter of Van Son, id., where a lawyer who was not admitted in this state sent solicitation letters to at least two South Carolina residents and, thereafter, failed to cooperate with ODC’s investigation. In addition to other sanctions, the Court barred the lawyer from admission in this state and from advertising or soliciting clients in South Carolina for a period of five years.”

“In the current matter, not only did respondent target residents of South Carolina through various forms of advertising including radio communications and print media, but she also held herself out as licensed to practice law in this state, welcomed clients with criminal and family law concerns, and sent letters on behalf of clients addressed to state court judges. Further, when she did participate in the disciplinary investigation, respondent made false statements of material fact concerning the extent of her practice and the extent of her advertising in South Carolina to ODC. Since then, respondent has failed to cooperate in the disciplinary investigation and to appear for the hearing. (citation omitted.

“We find it appropriate to permanently debar respondent 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 her to seek admission. Further, we prohibit respondent from advertising or soliciting business in South Carolina without first obtaining an order from this Court allowing her to advertise or solicit business in this state. Before seeking an order from this Court to either allow her to seek admission or to advertise or solicit, respondent shall complete the South Carolina Bar’s Legal Ethics and Practice Program Ethics School and Advertising School. Respondent shall pay the costs of the investigation and prosecution of this matter by ODC and the Commission within thirty (30) days of the date of this order.”

Bottom line: For the second time this year (the first was Berger in April, which I blogged about here: https://jcorsmeier.wordpress.com/2014/04/11/south-carolina-supreme-court-bans-florida-lawyer-from-practicing-law-who-solicited-over-the-internet-and-represented-clients-in-that-state/, the South Carolina Supreme Court has “debarred” a Florida lawyer from practicing law in that state for targeting SC residents on the internet and other forms of advertising, false advertising, and false statements in the disciplinary investigation and violating SC Bar rules, this time permanently.

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

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Connecticut lawyer agrees to a suspension for 4 months and career prohibition on representing women to resolve disciplinary allegations

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent media stories about a Connecticut lawyer who was suspended for four months and prohibited from representing female clients for the rest of his career after he was found guilty of representing women in family law and domestic-violence cases in violation of a 2010 Court Order.

The August 6, 2014 ABA Journal online article is here: http://www.abajournal.com/news/article/lawyers_suspension_includes_lifetime_ban_on_representing_women/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email and the Connecticut Law Journal article is here: http://www.ctlawtribune.com/home/id=1202665886913?slreturn=20140706064608 (requires subscription).

According to the ABA Journal article, the Connecticut Law Tribune reported that the Connecticut lawyer was suspended for four months and prohibited from representing female clients for the rest of his career after he was found guilty of representing women in family law and domestic-violence cases in violation of a 2010 disciplinary Order. The Connecticut disciplinary counsel had sought disbarment for the lawyer, named Ira Mayo, alleging that he had violated the Order at least 11 times. The lawyer apparently agreed to the suspension and career prohibition on representing women to resolve the disciplinary complaint.

The lawyer was found guilty of improper conduct in two prior discipline cases, according to the ABA Journal article. In one, he was suspended for 15 months after he was accused of making unwanted advances to female clients referred to him by a group for abused women. In the second, he was prohibited from representing women in family law or domestic violence cases after he was accused of offering to waive attorney fees in exchange for a massage.

Bottom line: Some (many) might say that this result was quite generous to the lawyer. There is no mention in the article as to whether the lawyer was sued for his alleged misconduct.

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

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline alleged sexual misconduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions