Monthly Archives: August 2015

Colorado lawyer suspended for 18 months for disclosing confidential information in response to client internet criticism

Hello everyone and welcome to this Ethics Alert which will discuss the recent disciplinary opinion suspending a Colorado lawyer for 18 months for disclosing confidential client information in response to their internet criticism.  The disciplinary opinion is People v. James C. Underhill Jr. Case No. 15PDJ040 (consolidated with 15PDJ044 and 15PDJ059) (August 12, 2015) and is here: http://www.coloradosupremecourt.us/PDJ/ConditionalAdmissions/Underhill,%20Conditional%20Admission%20of%20Misconduct,%2015PDJ040,%2015PDJ044,%2015PDJ059,%208-12-15.pdf.

The opinion approved the conditional admission of misconduct and suspended the lawyer from the practice of law for eighteen (18) months which will begin after his current suspension ends.  The lawyer admitted that he disclosed client confidential information in response to clients’ internet complaints about his fees or services in two client matters.

In the first matter, a married couple retained the lawyer to assist with the husband’s ongoing post-dissolution dispute with his former spouse. The clients could not pay all the fees up and the lawyer verbally agreed to monthly payments, with an initial $1,000.00 deposit; however, “he did not explain that he reserved the right to demand full payment at his sole discretion.  He collected an additional $200.00 for a ‘filing fee,’ though he took no action that required such a fee.”

The lawyer also “failed to adequately communicate with the clients and did not inform them of opposing counsel’s objections to their discovery responses. Underhill later threatened to withdraw in two business days unless the clients made full payment of all fees. When the couple terminated the representation, (lawyer) declined to refund the $200.00 ‘filing fee.’”

The clients posted complaints about the lawyer on two different websites. The lawyer responded with “internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.”  The lawyer then sued the couple for defamation and communicated directly with them, although “he knew that the couple had retained counsel, (lawyer) communicated with them ex parte on several occasions, even though their counsel repeatedly implored him not to do so.”  When that suit was dismissed, the lawyer filed a second defamation action in a different court, “alleging without adequate factual basis that the couple had made other defamatory internet postings.”

In a second matter, the lawyer represented a couple  to renegotiate a lease for their business. The couple eventually became dissatisfied with the lawyer’s services and terminated him. The clients posted a complaint about the lawyer on the Better Business Bureau’s website. The lawyer responded by providing an attorney-client communication and making “uncomplimentary observations about and accusations against the couple based on confidential information related to the representation.”

The lawyer’s 18 month suspension will begin after he serves a current suspension of 3 months and one day for communicating directly with his former clients who were represented by counsel while on disciplinary probation. That disciplinary order is here: http://www.coloradosupremecourt.us/PDJ/OpinionsAndSummaries/Underhill,%20Revocation%20of%20Probation,%2012PDJ071,%206-29-15.pdf.

The suspension takes effect on October 1, 2015.  After the suspension period, he must apply for reinstatement and prove by clear and convincing evidence that he has been rehabilitated, that he has complied with the disciplinary orders and rules, and that he is fit to practice law. 

The lawyer was also suspended for one year and one day for trust account violations in 2012.  That disciplinary order is here:  http://www.coloradosupremecourt.com/PDJ/ConditionalAdmissions/Underhill,%20Conditional%20Admission%20of%20Misconduct,%2012PDJ071,%2010-1-12.pdf

According to the Colorado Supreme Court’s website, the opinions of the Presiding Disciplinary Judge are final orders and may be appealed to the Supreme Court; however, since the opinion approved an agreed conditional admission of misconduct, it will not be appealed.

Bottom line: This is yet another cautionary tale for lawyers practicing in the digital age.  As all lawyers know, attorney/client confidences must be preserved unless the client authorizes disclosure (preferably be in writing) or there is an exception to the confidentiality rule, such as defending a Bar complaint or malpractice action.  A client’s criticism of the lawyer on internet websites is certainly not one of those exceptions and revealing confidential information in response to criticism on those platforms is a violation of the Bar rules.

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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Florida Bar Board of Governors finds that unrequested texts to prospective clients on specific matters are not prohibited solicitations

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent and somewhat surprising decision of the Florida Bar’s Board of Governors to reverse Statewide Advertising Committee’s opinion that texts to prospective clients on specific matters would be solicitations in violation of the Bar rules.

As I previously reported in the June 8, 2015 Ethics Alert blog, the Florida Bar’s Standing Committee on Advertising issued an opinion in May 2015 stating  that text messages to a prospective client regarding a specific matter 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.

According to a recent Bar News article, The Florida Bar’s Board of Governors reversed the Advertising Committee’s opinion at its July 24, 2015 meeting and found that a law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and e-mail communications.  The Florida Bar Rules would require that the first line of the text state that the communication is “advertising” and, if the text is a communication about a specific matter, it must have language stating that if the recipient already has an attorney, he or she should ignore the text.  The text must also disclose how the law firm got the recipient’s name.

The law firm which requested the advertising opinion stated that it will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if the recipient would pay for it under his or her mobile phone plan.  The decision passed with a voice vote with some dissenters.

Bottom line:  This is a somewhat surprising reversal of the Bar’s Statewide Advertising Committee’s opinion by the BOG that texts to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules; however, it opens the door for lawyers to use these types of communications.  Ahh…the advancements of the digital age.

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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Tennessee lawyer who, inter alia, billed clients for watching crime TV shows and was “doggedly unrepentant” is suspended for one year

Hello everyone and welcome to this Ethics Alert which will discuss the recent Tennessee Supreme Court disciplinary opinion which suspended a lawyer for one year for, inter alia, billing clients for watching true-crime shows.  The opinion is Yarboro Sallee v. Tennessee Board of Professional Responsibility, No. E2014-01062-SC-R3-BP (July 23, 2015) and is online here:  http://www.tsc.state.tn.us/sites/default/files/salleeyarboro.opn_.pdf

According to the opinion, the underlying matter involved an accident which occurred on October 15, 2009.  The decedent, Lori Noll, fell down steps in her home and died five days later. Although a medical examiner found that the death was accidental, the Ms. Noll’s parents suspected that their daughter’s husband was motivated by a one-million dollar insurance policy on Ms. Noll’s life and was responsible for her death.

The lawyer was hired by the parents in September 2010 to file a wrongful death action.  The lawyer estimated that the litigation would cost no more than $100,000.00.  The parents agreed to pay the lawyer an hourly rate of $250.00 and paid her an initial retainer of $5,000.00.  The parents paid the lawyer an additional $15,000.00 and, within a month after the initial engagement, the parents paid an additional $19,000.00 in three separate checks: (1) $10,000.00 as a further retainer (2) $4,000.00 flat fee for the juvenile court proceeding, and (3) $5,000.00 to retain a forensics expert.

Less than three months later, the lawyer claimed that she had incurred hourly fees totaling over $140,000.00.  At that point, she had done “little more” than file the wrongful death complaint, file related pleadings in probate and juvenile court, and gather records.  When the lawyer insisted that the clients agree to pay her a contingency fees plus the hourly fees, they terminated her.

After the clients terminated the lawyer, she refused to return to them important evidence and documents related to the wrongful death litigation, including brain tissue slides from their daughter’s autopsy. The clients sued the lawyer to force her to return the withheld items and the lawyer threatened to file criminal charges against them. The clients then filed a complaint against the lawyer with the Tennessee Board of Professional Responsibility.

The Professional Responsibility Board investigated the lawyer, who argued that her conduct had been reasonable and ethical.  She provided the Board documentation of her hourly charges, which claimed that she had worked as many as 23 hours of billable time in a single day and included fees for tasks such as watching many hours of reality and fictional crime TV shows.

A hearing panel found that the lawyer had violated numerous the Bar by charging excessive fees, demanding that the clients agree to pay a contingency fee in addition to hourly fees, failing to communicate with the clients regarding the basis for the fees, improperly withholding items from the clients after they discharged her, and threatening to file criminal charges against the clients. The hearing panel found five aggravating factors: (1) a dishonest and selfish motive; (2) a pattern of misconduct; (3) multiple offenses; (4) refusal to acknowledge the wrongfulness of her conduct; and (5) indifference to making restitution and one mitigating factor: the absence of a prior disciplinary record and recommended a one year suspension.

The lawyer requested judicial review of the hearing panel’s recommendation, and the trial judge upheld the sanction. The lawyer then appealed to the Tennessee Supreme Court, claiming that there was no basis for finding ethical violations and that the one year suspension was too severe.  The opinion upheld the hearing panel’s findings that the lawyer violated multiple ethical rules and the one year suspension.  “At every turn in these proceedings, faced with findings at every level that her conduct breached numerous ethical rules, Attorney Sallee has been doggedly unrepentant. Indeed, her consistent response has bordered on righteous indignation.”

The opinion further stated:  “Assuming arguendo that the hourly rate of $250 per hour is reasonable for Attorney Sallee’s experience and ability, it is important under the Rules that the lawyer ensure that the work for which he or she seeks to charge the client is ‘reasonable.’ For example, a lawyer who represents criminal clients may be interested in watching Perry Mason or Breaking Bad on television, and may even pick up a useful tidbit or two from doing so. The lawyer may not, however, equate that to research for which he or she may charge a client. In this case, the Panel did not err in considering the many hours Attorney Sallee sought to charge the Claimants for watching television shows such as 48 Hours.

“Attorney Sallee also objected to the trial court’s comment that she ‘watched TV and charged her client for it.’ She characterized this statement as ‘ridiculous,’ adding, ‘since when is television not a respectable avenue for research anyway.’ Attorney Sallee pointed to a particular time entry on her ‘billing statement’ as legitimate billable time because it was spent watching a five-hour documentary on the Peterson ‘Stair Case Murder’ in North Carolina. Her motion did not address a 12.5-hour time entry on September 25, 2010, for watching ‘48 Hours’ episodes on similar spousal homicides, a 4.0-hour time entry on October 19, 2010 for watching four ‘48 Hours’ episodes on asphyxia, or a 3.5-hour time entry on October 20, 2010 for watching these same ‘48 Hours’ episodes a second time. At Attorney Sallee’s regular hourly rate, this would amount to over $5,000 for watching episodes of ‘48 Hours.’”

Bottom line: This is an egregious example of a lawyer seriously abusing billable time and charging an excessive fee, including charging as many as 23 billable hours in one day and charging multiple billable hours watching crime TV shows.  To compound her problems, the lawyer refused to turn over the clients’ evidence and information after they had terminated her and apparently completely failed to grasp that she had committed any misconduct.

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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New York City Bar Association Formal Opinion addresses what conduct by a lawyer constitutes a “threat of a disciplinary complaint”

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York City Bar Association Formal Opinion addressing conduct by a lawyer which may constitute a “threat of a disciplinary complaint”.  The ethics opinion is N.Y.C. Bar Assoc. Formal Op. 2015-5 (June 2015) and is online here:  http://www.nycbar.org/ethics/ethics-opinions-local/2015opinions/2196-formal-opinion-2015-5-whether-an-attorney-may-threaten-to-file-a-disciplinary-complaint-against-another-lawyer

In my practice, I am frequently asked about (and I represent lawyers in defending alleged violations of) Florida Bar Rule 4-3.4(g), Rules Regulating The Florida Bar, which states that a lawyer must not “present, participate in presenting, or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.”

This recent New York City Bar Association formal opinion examines New York Rules of Professional Conduct 3.4(e), which states that a lawyer “shall not … present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter”.

The opinion states that a lawyer who “merely” advises another lawyer “that his conduct violates a disciplinary rule or could subject them to disciplinary action” would not violate the rule; however, including “a statement that (the lawyer) intend(s) to file disciplinary charges unless the other lawyer complies with a particular demand” constitutes an improper threat which violates the New York disciplinary rule.

The opinion further states that “’before making a report’ to the Bar, ‘an attorney is permitted to confront her adversary with evidence of misconduct to confirm that an ethical violation has occurred’ (emphasis supplied and citation omitted)  Further, the attorney may ‘ask whether opposing counsel denies the misconduct or can cast doubt on whether it occurred.  What the attorney may not do is condition the handling of a mandatory grievance on compliance with a particular demand. So, if after confronting the opposing lawyer with evidence of the misconduct, the attorney is convinced that the other lawyer in fact committed the misconduct, it would be improper, in the words of Professor Simon, to ‘invit[e] the opposing lawyer to bargain away the grievance.’”

The opinion concludes with the following admonition:

An attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules of Professional Conduct (the “New York Rules” or “Rules”). Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purpose other than to embarrass or harm another person or that violates other substantive laws, such as criminal statutes that prohibit extortion.

Bottom line:  The Bar rules in most jurisdictions (including Florida) prohibit lawyers from threatening to present disciplinary charges against another lawyer solely to obtain an advantage in a civil matter.  This opinion concludes that, under the New York disciplinary rule (which only addresses threatening criminal charges), a lawyer is permitted to confront the other lawyer with evidence of ethical misconduct to confirm that an ethical violation has occurred; however, if the lawyer states that he or she intends to file disciplinary charges unless the other lawyer complies with a demand, this would be an improper threat in violation of violate the New York rule.

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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