Monthly Archives: September 2015

Florida Supreme Court adopts Bar Rules defining retainer, flat fee and advance fees and clarifying deposits of fees

 

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which adopted Bar Rules which define retainer, flat fee and advance fees and clarifying deposit of fees.  The opinion is In Re: Amendments to Rules Regulating The Florida Bar 4-1.5—Fees and Costs for Legal Services, No. SC14-2112 (September 17, 2015) and the opinion is here: http://www.floridasupremecourt.org/decisions/2015/sc14-2112.pdf  The amendments will become effective on October 1, 2015.

The opinion adopted amendments filed by The Florida Bar adding subdivision (2) to Florida Bar Rule 4-1.5, which defines the terms retainer, flat fee and advance fee.  The amendment also adds language to the Comment under “Terms of payment” stating that nonrefundable flat fees and nonrefundable retainers should not be deposited into the lawyer’s trust account; however, advance fees must be held in trust until earned.  The Comment also states that nonrefundable fees can still be excessive.

The amendment also moves the language in the Comment regarding contingent fees in criminal and domestic relations cases under the header “Prohibited contingent fees.”

Bottom line: these amendments to Rule 4-1.6 resulted from recommendations made by the ABA Ethics Commission 20/20.  As I pointed out in a previous Ethics Alert, the current amendments were drafted after an earlier attempt by The Florida Bar to place definitions in the Comment to Rule 4-1.5 was rejected by the Florida Supreme Court in an opinion stating that any definitions should be in the rule.

Be careful out there.

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, Excessive fee, Florida lawyer trust accounts, joe corsmeier, Joseph Corsmeier, Lawyer escrow accounts, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer excessive fee, Lawyer nonrefundable fees, Lawyer trust accounts, Lawyer unreasonable fee

Florida Supreme Court issues opinion stating that lawyers should be prohibited from accepting referrals from non-lawyer owned referral services

Revised with corrected link to Supreme Court opinion only.  I apologize for any inconvenience.

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which rejected The Florida Bar’s proposed lawyer referral rules and stated that lawyers should be prohibited from accepting referrals from non-lawyer owned referral services.  The opinion is In Re: Amendments to Rules Regulating The Florida Bar 4-7.22- Lawyer Referral Services, No. SC14-2126 (September 24, 2015) and the opinion is here: http://www.floridasupremecourt.org/decisions/2015/sc14-2126.pdf

According to the opinion, a Special Committee on Lawyer Referral Services was created after “the recent and dramatic growth of for-profit lawyer referral services, along with a corresponding increase in public concern as to both the misleading nature of the activities of these services and the potential harm they may cause.”  The Special Committee issued a report, which was modified by the Bar’s Board of Governors, which would have allowed lawyers to receive referrals from for-profit lawyer referral services which were owned by non-lawyers and which made referrals to both lawyers and other providers, including medical providers.

The opinion also states that the restriction of ownership only to lawyers “is absolutely necessary” to protect the public from referral services that “use lawyers to direct clients to undesired, unnecessary or harmful medical treatment or services” and such a rule would also “prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.”

The opinion’s full conclusions are below:

We have carefully reviewed the final report of the Special Committee and conclude that the public is at significant risk from for-profit lawyer referral services that also refer clients to other businesses. We recognize that the anecdotes presented in the final report do not represent every non-lawyer-owned, for-profit referral service; however, the potential harm is too great for us to approve the amendments proposed by The Florida Bar. These amendments would not cure the multiple concerns highlighted by the Special Committee, but would allow the troubling incidents discussed in the final report to continue. The dangers that nonlawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar.

Accordingly, we reject the current petition and instruct The Florida Bar to propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. We further instruct the Bar to review any other rules or regulations that address lawyer referral services to determine whether new rules are necessary to implement our direction today. Based upon this review, the Bar may conclude that amendments to, or repeal of, other rules are required. While the action we take today may be viewed by some as severe, we conclude it is absolutely necessary to protect the public from referral services that improperly utilize lawyers to direct clients to undesired, unnecessary, or even harmful treatment or services. Our action today will also prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.

The Florida Bar was ordered to submit a new petition on or before May 24, 2016.

Bottom line: This opinion may very well be the beginning of the end of non-lawyer owned for-profit lawyer referral services in Florida.  The Florida Bar will now prepare and file revised proposed rules in compliance with the opinion’s suggestions/mandate and file the rules with the Court for review.

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 Florida Lawyer Ethics and Professionalism, Florida Lawyer Referral Services, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Referral Services

New York paralegal indicted for allegedly creating more than 100 false orders and forging the signatures of 76 judges

 

Hello and welcome to this Ethics Alert which will discuss the recent Indictment of a New York paralegal for allegedly creating more than 100 false judicial orders and forging signatures of 76 judges in structured settlement matters.  The case is New York v. Thomas Rubino and the Indictment is online here: http://nylawyer.nylj.com/adgifs/decisions15/091715indictment.pdf

According to the Indictment filed by New York District Attorney Cyrus Vance, Jr.’s office on September 16, 2015 and a press release issued on the same day, Thomas Rubino, a former paralegal at a personal injury law firm, allegedly forged the signatures of 76 state Supreme Court justices to create more than 100 false judicial orders in structured settlement matters.

The District Attorney’s press release states as follows:

“According to the indictment and documents filed in court, from July 2010 to October 2013, RUBINO was employed as a paralegal for Paris & Chaikin a law firm located on West 34th Street in Manhattan. Paris & Chaikin represents structured settlement companies in the purchasing of structured settlement rights – money owed to an individual from an insurance claim settlement, such as a personal injury matter, generally paid in installments over the course of several years. Structured settlement companies purchase an individual’s settlement rights in return for a lump sum payment. This practice is regulated in New York State and each transaction requires the approval of a Justice of the New York State Supreme Court to ensure that each transfer is in the best interest of the individual.

Beginning in December 2010, RUBINO served as the law firm’s primary employee handling structured settlement acquisitions. In this role, the clients would email him directly with a transaction that required approval. RUBINO was supposed to draft the required court documents and file them in the court in the appropriate county in New York State.

Between approximately late June 2011 and October 2013, RUBINO forged the signature of 76 justices on 117 documents that purported to be judicial orders approving the transfer of structured settlements. The defendant used a pair of scissors to cut a judge’s signature from a legitimate document, and then taped that signature onto the fake order that he created. After RUBINO transmitted the forged judicial orders to the clients, the clients released the funds to the individuals and sold the annuities to third parties.

In late 2013, the legitimacy of at least two transfers processed by RUBINO was called into question. Fearing detection, the defendant told the law firm that he had a family emergency and needed to leave immediately. He never returned.

The District Attorney’s press release is here:  http://manhattanda.org/press-release/da-vance-former-paralegal-charged-forging-signatures-76-state-supreme-court-justices

According to media reports, including the New York Law Journal, Rubino pleaded not guilty during an arraignment on the criminal charges on September 16, 2015.  The charges are D felonies, which carry statutory maximum terms of 2 1/3 to 7 years.  The judge set bail at $25,000.00 and is quoted as stating that it was a “very bizarre case” and “where are the lawyers on this?”

According to the documents filed by the District Attorney’s office, after leaving the law firm, Rubino met with prosecutors four times and he “fully confessed” to the crimes.  The documents also included a voluntary disclosure form containing four statements made by Rubino to the prosecutors: “I couldn’t keep up with the work, and I felt like I couldn’t leave so I created the forged orders”,  Rubino also stated he received a letter from a judge asking the firm to appear because the local clerk’s office could not locate the order; however, he hid the letter in his desk and did not tell anyone.  He said “I knew I had been caught”  and that he left the firm soon afterward.  Rubino also said the law firm’s principal lawyers were not aware of his conduct.  The Voluntary Disclosure form is here: http://nylawyer.nylj.com/adgifs/decisions15/091715disclosure.pdf

The District Attorney’s office has also indicated that there are no other criminal charges in the case.  According to media reports, the law firm’s counsel said that, since discovering Rubino’s fraud, “(the law firm) has remained absolutely committed to diligently, ethically and aggressively addressing this matter.”  He also said the firm immediately reported the fraud, “and upon discovering other acts of misconduct, the firm has continued reporting Rubino’s acts of fraud to various New York courts and law enforcement. We are confident that (the law firm’s) cooperation with law enforcement, including the New York State Inspector General’s office and the district attorney’s office, will result in Rubino being brought to justice.”

Bottom line: This is a very scary example of an apparently poorly or unsupervised non-lawyer/paralegal engaging in egregious misconduct without the knowledge of the supervising lawyers/partners; however, there would presumably be potential liability for violations of New York disciplinary rules related to the failure to properly supervise the paralegal.  Lawyers must always closely monitor the activities of non-lawyer employees and properly supervise them, which is required under the Bar disciplinary rules in every jurisdiction.  Florida Bar Rule 4-5.3 sets forth the responsibilities of partners and supervisory lawyers regarding non-lawyer assistants and is online here:  http://www.floridabar.org/divexe/rrtfb.nsf/FV/8C9B4524008595E485256BBC0052DD7B

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 Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer failure to supervise nonlawyer, Paralegal misconduct forging orders and judge signatures

Illinois Bar complaint alleges that lawyer left racially and religiously abusive voice mails and neglected a criminal appeal

Hello everyone and welcome to this Ethics Alert which will discuss the recent disciplinary complaint filed by the Illinois Disciplinary Commission against a Chicago, Illinois lawyer alleging, inter alia, that the lawyer left abusive voice mails telling the father of one client that “all black people are alike”, calling a nursing home administrator a “stupid Jew ass”, and using other abusive racial and ethnic language in the voice mails.  The disciplinary complaint was filed in the case of In the Matter of the Michael Jerome Moore, Commission No. 2015PR00076 (August 26, 2015) and is here: http://www.iardc.org/15PR0076CM.html

The first count of the disciplinary complaint alleges that the lawyer represented a client in defending criminal aggravated battery charges beginning in 2012.  The lawyer left voice mails with the client’s father in the summer of 2014 in an attempt to collect $300.00 in additional fees. The father had already paid a $3,500.00 under the fee agreement, as well as an extra $200.00.  The voice mail included the following statements:

“You are a piece of garbage. All black people are alike. You’re slovenly, ignorant.”

“You better give me my money or your son’s case is going to be delayed.”

“I’m sick of you, you piece of shit.”

“Low class n—–s. I’m going to have you all locked up.”

“You’re ugly, low class, ignorant. I’ll finish with you when he gets off. You’re demeaning your son.”

The second count of the disciplinary complaint alleges that the lawyer represented an individual in matters related to a power of attorney that the individual had executed for the lawyer to assist him.  The client was moved out of a nursing home and the lawyer left a voice mail with the nursing home in June 2014 protesting the nursing home’s release of the client. The voice mail included the following statements:

“You know, I tried to be academic, intellectual, and community-minded and everything else with you. What you’re supposed to do as a nursing home, you piece of [shoe or Jew] garbage. You put my girl out in the street and didn’t give a fuck, and didn’t let her come back, and know that she is mentally challenged. Are you mentally challenged, you piece of shit? Let me tell you something. There is a tort–with your stupid ass, you don’t know what that is—called violation of fiduciary capacity. And that’s what you’ve done in this, with your stupid Jew ass. Mother-fuck you, how you fucked my girl. Okay, I’m going to sue you, a federal law– I’ll sue you, sue the fuck out of you. You should’ve knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She’s schizophrenic, hyper-paranoid schizophrenic, you piece of shit.”

The third count of the disciplinary complaint alleges that the lawyer violated the Illinois Bar disciplinary rules by:

“failing to provide competent representation to a client, by conduct including failing to file a completed petition for waiver of appellate fees and affidavit of indigency signed by Thomas and failing to respond to orders of the Wisconsin Court of Appeals, in violation of Rule 20:1.1 of the Wisconsin Rules of Professional Conduct; and

failing to act with reasonable diligence and promptness in representing a client, by conduct including failing to file a completed petition for waiver of appellate fees and affidavit of indigency signed by Thomas and failing to respond to orders of the Wisconsin Court of Appeals, in violation of Rule 20:1.3 of the Wisconsin Rules of Professional Conduct.”

Bottom line: This is another “you couldn’t make this up” moment.  If the allegations are true, it appears that anger management may in this lawyer’s future.  Although this is clearly an extreme case (if the allegations are true) it provides me with a good opportunity to remind all lawyers (and non-lawyer staff) that we all must be extremely careful with our words in voice mails, e-mails, and all other communications.  Also, we must always keep in mind that a voice mail message may very well be accessed by a person other than a client; therefore, a v/m message should not reveal any attorney/client confidential information.

Be careful out there.

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 blog 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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Washington lawyer suspended for 1 year for courtroom behavior, including making a loud noise like an animal being killed

Hello everyone and welcome to this Ethics Alert which will discuss the recent disciplinary opinion suspending a Washington lawyer for one (1) year for, inter alia, making loud noise sounding like an animal being killed and falsely claiming that a deputy tripped her.  The disciplinary opinion is In the Matter of the Disciplinary Proceeding Against Kathryn B. Abele, Case No. 201,352-0 (August 27, 2015) and is here: https://www.courts.wa.gov/opinions/pdf/2013520.pdf

According to the opinion, the lawyer represented the father in a three-way child custody battle. The trial lasted 13 days and, according to the testimony, it was” unusual, complex, and contentious”.  “Throughout the trial, (the lawyer) was repeatedly admonished for interrupting the court and other counsel.  She slammed objects on the table and made loud comments when (the judge) ruled against her.”  When the judge told her to stop, she said “I did not say anything”.

In a post-trial hearing, the lawyer “made it clear that she wanted the case resolved that day because she intended to immediately appeal the court’s decision. The court told (the lawyer) that it would not be possible to conclude that day and that she would not sign (the lawyer’s) proposed findings.  (the lawyer) became angry and said to (the judge), ‘You’ve got to leave now. We have to take a break now.’ (The judge), inferring from the statement that (the lawyer) was going to ‘blow up,’ called for a recess. After (the judge) left the bench, (the lawyer)made a loud screaming noise that could be heard in other rooms in the courthouse.  Security was called, but (the lawyer) was not held in contempt for this outburst.”

In another post-trial hearing, “(the lawyer) repeatedly interrupted (the judge), even yelling to express her disagreement. When (the judge) directed staff to summon security, (the lawyer) announced, ‘I’m going to jail. I’m going to jail,’ placing her hands over her head, crossed at the wrists as if being handcuffed.  (The lawyer) walked out of the courtroom while court was still in session, causing the proceedings to come to a halt.  (The lawyer) reentered the courtroom and announced, ‘I’m leaving. I’m out of here …. I’m abstaining completely …. Good-bye.’”

The judge ordered court security to bring the lawyer back into the courtroom.  The lawyer initially refused but ultimately returned to the courtroom.  After she returned, the judge stated on the record that the lawyer had made “loud noises that to me sounded like an animal being killed and “I have been in these courts for 30 years, 18 as a judge. I have never heard anything- I have never heard any lawyer make any kind of noise or do anything like that before.”  The lawyer “again yelled at the judge, attributing her previous scream to a hip injury and claiming that her yelling was the result of a hearing disability.”

The judge then held the lawyer in contempt.  She responded by stating: “Your Honor, I appreciate your lecture. Could you just tell me how much I have to pay in a fine so I can get rid of it and take care of it and resolve this issue with you?” After leaving the courtroom, the lawyer yelled, “That bitch”.  The judge had told the lawyer that she could purge herself of contempt if she contacted the Lawyer’s Assistance Program and she complied the next day.

According to the opinion, the lawyer also made a complaint about being tripped after she confronted a security officer who was called earlier in the day to respond to her alleged disruptive behavior in a courthouse hallway.  The lawyer forced her way between the officer and another security marshal, brushing against the second marshal’s knee. “(The lawyer)  immediately spun around, pointed and yelled,” accusing the marshal of tripping her. She called 911 and made the same accusation.  “The responding officer reviewed the security video and decided it did not support (the lawyer’s) version of events.”  The opinion found that the lawyer knowingly making a false and misleading statement to a law enforcement officer.

The lawyer argued that the stress of the litigation should be considered as a mitigating factor; however, the opinion rejected that argument.  The opinion imposed a one (1) year suspension and ordered that the lawyer complete an evaluation to determine her fitness to practice before being reinstated and pay all of the costs and expenses.

Bottom line: As Vin Scully might say, “Oh my.”  This lawyer engaged in some very bizarre conduct and it would certainly appear that it might be attributable to the extreme stress of the “contentious” 13 day trial and/or some serious underlying psychological issues.

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 joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer derogatory remarks, Lawyer discipline, Lawyer disobeying order of tribunal, Lawyer disrupting tribunal, Lawyer disruptive conduct, Lawyer disruptive litigation conduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer sanctions