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