Monthly Archives: June 2015

LegalZoom files federal antitrust lawsuit against the North Carolina State Bar citing 2015 USSC dental board case

Hello everyone and welcome to this Ethics Alert which will discuss the recent antitrust lawsuit filed on June 3, 2015 by LegalZoom against the North Carolina State Bar alleging antitrust violations.  The case is LegalZoom.com, Inc. v. North Carolina State Bar, et al, (U.S. Middle District, North Carolina) Case No.: 1:15-CV-439.  The formal Complaint (WSJ link) is at http://online.wsj.com/public/resources/documents/2015_0604_legalzoom.pdf.

The Complaint was filed on June 3, 2015 and seeks injunctive relief for antitrust violations as well as damages, claiming that the North Carolina State Bar is has “engaged in unauthorized and anticompetitive conduct illegally and unreasonably restraining trade in the Relevant Market” by prohibiting LegalZoom from offering prepaid legal services plans in that state.  As support for the claims, the Complaint cites a recent U.S. Supreme Court decision on the prohibition of non-dentists from providing teeth whitening services in North Carolina.

According to the Complaint, in 1991, the North Carolina state legislature “removed from the State Bar any power over prior and continuing approval of prepaid legal services plans, leaving to the State Bar only the ministerial task of keeping a registration list of plans sold in North Carolina.  The State Bar, however, defied the Legislature. Over time, the State Bar unilaterally and ultra vires reassumed and exercised the power the Legislature had removed. The State Bar adopted – without legislative authority or active State supervision – a restrictive definition of what constitutes a prepaid legal services plan, and then began to refuse to ‘accept’ for registration plans that purportedly did not meet its own definition, excluding those plan providers from the Relevant Market.”  The Complaint states that the Bar rules require the prepaid plans to be paid in advance of any immediate need, and any legal services provided must be provided by lawyers licensed in the state.

In support of the allegations, the Complaint cites the February 2015 U.S. Supreme Court decision North Carolina State Board of Dental Examiners v. Federal Trade Commission, which is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.  The North Carolina State Board of Dental Examiners opinion held that a dental regulatory board made up mostly of dentists does not have state-action immunity in an antitrust action and authorized a Federal Trade Commission challenge to the dental board’s prohibition of the provision of teeth whitening services by non-dentists.  The opinion also found that when a state board is controlled by market participants in the occupation that it regulates, state-action antitrust immunity does not accrue unless the restraint of trade that is being challenged is affirmatively expressed as state policy and the policy is actively supervised by the state.

Bottom line: It should be very interesting to watch this case unfold.  When the USSC opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission was rendered on February 25, 2015, there was much analysis/commentary in the media regarding the potential vulnerability of state Bars to an antitrust challenge if it could be shown that they were controlled by market participants (lawyers) in the occupation being regulated (the law).  This appears to be the first shot across the bow.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 Bar antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, LegalZoom, LegalZoom antitrust

Wisconsin lawyer’s alleged failure to appear at trial and later offer of gift card to a judicial assistant results in Bar disciplinary complaint

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent Bar Complaint filed against a Wisconsin lawyer who, inter alia, allegedly failed to appear for a trial and then “tossed a gift card” on the desk of the judge’s assistant in an apparent attempt to gain favor regarding the judge’s decision not to reschedule the trial and imposing the default judgment.  The disciplinary complaint name and file number is In Re: Kirk W. Everson, Case No. 2015AP1054D.

According to a disciplinary complaint filed by the Wisconsin Office of Lawyer Regulation on May 28, 2015, the lawyer was scheduled to appear in a trial on a drunken driving ordinance violation in Oshkosh, Wisconsin before a Circuit Judge named Thomas Gritton.  On the same morning, the lawyer was also scheduled to appear in a criminal case before a different judge in another Circuit Court in Vilas County, Wisconsin.

The lawyer had agreed to represent the defendant in Vilas County, Wisconsin during the week of September 23, 2013.  On September 26, 2013, the lawyer filed a motion requesting a continuance of the trial before Judge Gritton; however, the judge apparently had not received it by September 30, 2013.

The case was then called for trial on September 30, 2013.  The judge said: “Well I didn’t give you permission not to be here.  Nobody gave—I mean, you just don’t get to not show up.  It is not the way it works.  And he had nothing from my office or from me directing him that he didn’t need to be here.  I’m going to find him in default.  I’m going to set a sentencing date and we’ll see what he (the lawyer) has to say.”

The judicial assistant called the lawyer on September 30, 2013 and advised him that the judge had defaulted and found his client guilty because of his non-appearance at the trial and she was calling to calendar a sentencing date.  She also stated that she did not know what would happen and the lawyer became agitated and told the assistant that he was being “railroaded” by the court and the assistant city attorney.  The lawyer said he did not have his schedule and the judicial assistant then said that she would contact the lawyer’s assistant to set up the hearing.

Later that same day, the lawyer went to the courthouse and “tossed a gift card” on the judicial assistant’s desk. The judicial assistant said that she could not accept it and moved it back toward the lawyer.  The lawyer then said the following (or something similar to): “What, I don’t see anything” and took back the card.  The Complaint does not specify the dollar amount of the gift card.

The judicial assistant told the judge of the lawyer’s alleged misconduct and the judge subsequently advised the Wisconsin Bar authorities (Office of Lawyer Regulation) regarding  the incident.  According to media reports, the judge revoked lawyer’s client’s driver’s license for eight months in October 2013 and the Wisconsin Bar has offered the lawyer a private reprimand to resolve the complaint.

Bottom line:  This Wisconsin lawyer apparently failed to appear at a trial and, after a default was entered, he attempted to offer an improper gift card/incentive to a judicial assistant and is being offered a private reprimand.  It would be very surprising if this result is approved by the Wisconsin Supreme Court.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline failure to appear for trial, Lawyer discipline improper attempt at gift to judicial assistant, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer sanctions

Florida Supreme Court opinion makes significant revisions to Florida Bar Rules on trust, confidentiality, and reinstatement procedures

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida implementing, inter alia, significant revisions to the trust account, confidentiality, diversion, and reinstatement rules.  The opinion is In Re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), No. SC14-2088 (June 11, 2015) and is online here:  http://www.floridasupremecourt.org/decisions/2015/sc14-2088.pdf. The amendments will become effective on October 1, 2015, at 12:01 a.m.

The opinion revises Bar Rule 3-5.3(c) to state as follows:  “a respondent who has been the subject of a prior diversion is not eligible for diversion for the same type of rule violation for a period of 5 years after the earlier diversion. However, a respondent who has been the subject of a prior diversion and then is alleged to have violated a completely different type of rule at least 1 year after the initial diversion, will be eligible for a practice and professionalism enhancement program.”  This rule change will reduce the period of ineligibility for a diversion from 7 to 5 years and permit a lawyer to receive more than one diversion in a 5 year period if the Bar rule allegations are not the same.

The opinion also revises Bar Rule 3-7.10(b)(1) to permit a suspended lawyer to file a petition for reinstatement after completion of at least 80% of the term of the period of suspension.  The opinion also revised Bar rule 4-1.6(c)(6) to permit a lawyer to obtain or provide confidential information “to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.”  This creates a new exception to the application of the confidentiality rule.

The opinion adds Bar Rule 4-1.6(e) which states that “(a) lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  This puts the burden on the sending lawyer to make reasonable efforts to prevent inadvertent/unauthorized disclosure of confidential information.

The opinion revises Bar Rule 5-1.1(a)(1)(B) to permit a lawyer to deposit “the lawyer’s own funds into trust to replenish a shortage in the lawyer’s trust account. Any deposits by the lawyer to cover trust account shortages must be no more than the amount of the trust account shortage, but may be less than the amount of the shortage. The lawyer must notify the bar’s lawyer regulation department immediately of the shortage in the lawyer’s trust account, the cause of the shortage, and the amount of the replenishment of the trust account by the lawyer.”  This revision specifically permits a lawyer to replenish funds into the trust account when there is a shortage without violating the prohibition against commingling.

Bottom line:  Many of these Bar rule revisions are a result of recommendations made by the 2011-2012 Florida Bar Commission on Review of the Grievance System in its 2012 Report.  The Commission was appointed by then Bar President Scott Hawkins and the undersigned was a member.

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 is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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, commingling, Confidentiality, Diversion, Florida Bar, Inadvertent disclosure of Confidential Documents, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer diversion, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer reinstatement, Lawyer trust accounts, Reinstatement

Florida Bar Statewide Advertising Committee finds that texts to prospective clients on specific matters are prohibited solicitations

Hello everyone and welcome to this Ethics Alert which will discuss the recent decision of the Florida Bar’s Statewide Advertising Committee to reject a plan by a law firm to obtain cell telephone numbers and send texts to prospective clients on specific matters since the text messages would be solicitations in violation of the Bar advertising rules.

The issue of whether a text message to a prospective client regarding a specific matter was recently reviewed by the Florida Bar’s Standing Committee on Advertising at its May 12, 2015 meeting.  The issue was reviewed after a criminal defense firm requested authorization to send text messages to prospective clients and guidance on its plan to use a computer system to send text messages regarding the firm’s legal services to potential clients who were arrested.  The law firm argued that a telephone number for text messaging is the functional equivalent of an e-mail address which are permitted communications under the Florida Bar Rules.

Florida Bar Advertising Rule 4-7.18 states that (with exceptions) a lawyer may not solicit professional employment from a prospective client by telephone or other communication directed to a specific recipient.  The Telephone Consumer Protection Act (TCPA) also prohibits telephone solicitations and the use of automated telephone equipment to send SMS text message and faxes.

The law firm’s plan was to use a daily list provide by the county clerk to obtain e-mail addresses and mobile telephone numbers of individuals arrested the previous day.  This information would be entered into an automated system which would send text messages offering its legal services.  The firm stated that it would only send a text if an e-mail was unavailable and that there would be an “opt out” provision to allow the recipient to decline future communication.

The Florida Bar Advertising Department’s lawyers had voted unanimously that the proposed text messages were prohibited and violated Rule 4-7.18 since text messages fall within the language of the rule’s prohibition against telephone communication and also since the proposal would likely violate the TCPA.  The law firm appealed the decision to the Florida Bar’s Standing Committee on Advertising.  The Standing Advertising Committee voted 6-1 against the proposal.  The law firm requested review by the Florida Bar’s Board of Governors and the review has been scheduled for the Board’s July 2015.

Bottom line:  This is another example of analysis and application of new digital media to the Bar advertising rules.  In this case, The Florida Bar’s Statewide Advertising Committee decided that text messages to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules.  Expect more of these reviews and issues in the future and stay tuned for the decision of the Board of Governors on this one.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 2013 Florida comprehensive advertising rule revisions, Advertising and solicitation with text messages, Attorney Ethics, Communication with clients, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions