Monthly Archives: February 2016

Missouri lawyer alleged to have used payroll document and opposing counsel’s written direct exam questions from e-mails hacked by client

Hello and welcome to this Ethics Alert blog which will discuss the disciplinary case against a Missouri lawyer who is alleged to have used a payroll document and direct examination questions of opposing counsel which were obtained by the client/ex-husband by hacking the wife’s e-mail account.  The disciplinary counsel’s brief is here: Disciplinary Counsel Brief.

According to the brief, the lawyer’s client (the husband in a divorce proceeding) provided the lawyer with two documents that the client had obtained by hacking the wife’s e-mail account.  The documents included a payroll document showing the wife’s recent salary and distribution document and a list of direct examination questions prepared by the wife’s attorney for the divorce trial.  The lawyer allegedly used the payroll document information during a settlement conference in July 2013 without disclosing that he had possession of it.

On February 11, 2014, the second day of trial, the list of the direct examination questions was included in a stack of exhibits provided by the lawyer in the courtroom and opposing counsel learned that the lawyer had the document for the first time.  When opposing counsel asked the lawyer why he had possession the list, he replied (apparently flippantly) that it contained a lot of leading questions and he planned to object to them.  The lawyer later stated that his paralegal had included the questions in the stack of exhibits and that he was joking when he made the remark about the leading questions.

In a conference held in the judge’s chambers the same day, the lawyer initially said that he had not seen the list of direct examination questions before that day; however, he later admitted he had seen the list of questions but claimed that he did not read the document.  The lawyer’s client admitted under oath that he had obtained the documents by accessing his wife’s personal e-mail account without her permission and that he had provided the documents to the lawyer.

According to the brief: “When questioned about his statement under oath on February 11, 2014, ‘that at some point in time [he] had read the first portion of that and realized that it was verboten, it was something that [he] should not have,’ Respondent testified that when he said ‘at some point in time’ he meant ‘that day’ in court when Jones confronted him with the list.”

The brief outlines the lawyer’s prior disciplinary record, which includes:

March 9, 1991 admonishment for communicating ex parte with the judge on two occasions during the pendency of a lawsuit in violation of Rule 4-3.5(b).

June 17, 1997 suspension with leave to apply for reinstatement not sooner than six (6) months as a result of a guilty plea in the U.S. District Court for the Eastern District of Missouri to the misdemeanor of willfully failing to submit an Income Tax Return.

November 2, 1999 admonishment for communicating ex parte with the judge during the pendency of a lawsuit in violation of Rule 4-3.5(b.

January 18, 2001 admonishment for failing to respond to the OCDC on three occasions for requests for information regarding an ethics complaint in violation of Rule 4-8.1(b).

July 6, 2004 admonishment for a Rule 4-3.3(d) violation for “failing to inform the tribunal in an ex parte proceeding of all material facts known to the lawyer enabling the tribunal to make an informed decision, whether or not the facts are adverse. Specifically: ‘When asked by Judge Dildine of Lincoln County what the exigent circumstances were that required his signature on a consent order presented by Respondent, Respondent replied that it was necessary to get the minor child at issue on a health insurance policy. The statement to the Court was inconsistent with Respondent’s testimony before the Division IV Committee wherein he stated that obtaining the judge’s signature on the order was necessary in order that Respondent’s clients regain custody of the minor child from parties whom his clients considered inappropriate.’”

The brief also alleges that the lawyer threatened opposing counsel regarding her “gossip” about the matter.  The disciplinary counsel’s brief seeks an indefinite suspension with no leave to apply for reinstatement until after 12 months.  The Missouri Supreme Court is scheduled to hear oral arguments on the case this month.

Bottom line: If the facts in the brief are true, this is a rather egregious case of a lawyer acting unethically.  The lawyer was (or should have been) aware that the documents were obtained by the client improperly and without the wife’s permission and, compounding the misconduct, the lawyer failed to advise opposing counsel that he had received the improperly obtained privileged and confidential documents (as is required in most, if not all jurisdictions).  The lawyer also used the payroll document against the wife in a mediation and may have arguably been planning to use the direct examination questions without opposing counsel’s knowledge until the paralegal included the document with the copies of exhibits apparently by mistake.

Be careful out there and don’t do this (if it is true)!

Disclaimer:  this e-mail 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

www.jac-law.com

 

 

 

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, lawyer confidentiality, Lawyer discipline, Lawyer disruptive litigation conduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper use of confidential privileged documents, Lawyer sanctions

ABA adopts Resolution 105 encouraging states to consider non-traditional legal service providers, including non-lawyer firm ownership

Hello and welcome to this Ethics Alert blog which will discuss the American Bar Association’s February 8, 2016 approval and adoption of Formal Resolution 105, which adopts the ABA Model Regulatory Objectives for the Provision of Legal Services.  The Final ABA Resolution 105 as Revised and Adopted is here: http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf

According to the ABA website, Resolution 105 “(a)dopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016 and urges that each state’s highest court, and those of each territory and tribe be guided by the Model Regulatory Objectives when they assess the court’s existing regulatory framework and any other regulation they may choose to develop concerning non-traditional legal service providers.” https://www.americanbar.org/news/reporter_resources/midyear-meeting-2016/house-of-delegates-resolutions/105.html

The ABA Resolution calls for the adoption of “regulatory objectives for the provision of legal services” that would help “identify and implement regulations related to legal services beyond the traditional regulation of the legal profession.”  With the exception of the District of Columbia, no jurisdiction in the U.S. permits non-lawyer ownership of law firms (although the United Kingdom and some U.K. commonwealth countries do permit it).

The arguments for non-lawyer ownership of law firms include that it would expand consumers’ access to legal services, encourage innovation, and reduce the cost of legal services; however, the Resolution has drawn criticism.  The arguments against non-lawyer ownership include that it would encourage profit making (and taking) over serving clients and the public.

According to a Wall Street Journal “LawBlog” article (quoting AmLaw Daily)”:

(T)he mere mention of “non-traditional legal service providers” raises hackles for some in the ABA. The Texas state bar board, for example, has asked Texas delegates to withhold their support for Resolution 105.  State bar president-elect Frank Stevenson II of Locke Lord said the board opposes the proposal because it seems to presume there’s a place for non-lawyers to provide legal services.”

The LawBlog article also states that “(t)he New York State Bar Association is also fighting against the resolution, saying it would open the door to nonlawyer firm ownership. ‘Nonlawyer ownership of law firms creates a whole new set of fiduciary responsibilities, which have nothing to do with the best interests of the clients we are duty-bound to serve,’ the state bar’s president, David P. Miranda, said in a statement.”

Bottom line: This is has been, and continues to be, a very controversial issue; however, there does not seem to be much support for non-lawyer ownership of law firms in Florida or other jurisdictions.

Disclaimer:  this e-mail 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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Twelfth Circuit Judge charged with misconduct for allegedly accepting Tampa Bay Rays tickets from firm with case pending before him

Hello and welcome to this Ethics Alert blog which will discuss the February 1, 2016 Notice of Formal Charges filed by the Florida Judicial Qualifications Commission (JQC) against Florida Twelfth Circuit Judge John Lakin for allegedly requesting and accepting Tampa Bay Rays tickets from a law firm which had a case pending before him.  The JQC charges are here: https://efactssc-public.flcourts.org/casedocuments/2016/182/2016-182_notice_77834.pdf

According to the JQC Notice of Formal Charges and charges, in June 2015, the judge was presiding over the personal injury case of Wittke v. Walmart June, wherein the plaintiff accused Walmart of negligence, which caused her to fall and injure herself.  After a trial, Walmart was found by the jury not to be liable for the plaintiff’s injuries.  The day after the verdict was rendered, the judge asked his judicial assistant to contact the law firm which defended the plaintiff to request tickets for that night’s game between the Tampa Bay Rays and the Boston Red Sox.

The judge received five tickets valued at about $100 each, and he indicated that he only used two of the tickets.  The judge was from the Boston area.  According to the JQC Notice:  “The tickets you received were excellent seats, being located seven to eight rows back, between home plate and first base”.

According to the JQC Notice, the plaintiff’s law firm filed a motion 6 days later to set aside the verdict and for a new trial.  The motion was heard on August 21, 2015; however, the judge did not rule at that time.  On August 25, 2015, the judge requested and received five more tickets to a Tampa Bay Rays game from the law firm and, on August 26, 2015, the judge issued an order setting aside the verdict and granting a new trial.  The Order stated that  “(n)o reasonable jury could have returned a verdict finding that the Defendant was not at least partially liable for the injuries sustained by the plaintiff based on the evidence presented at trial.”   The Notice further states:  “(y)our extraordinary action allowed the Plaintiff a second opportunity to seek damages from Walmart. You have acknowledged that during your tenure on the bench you have never before overturned a jury verdict.”

According to the JQC Notice, the Chief Circuit Judge for the 12th Judicial District told the judge his conduct was inappropriate and told him to report it to the JQC.  The judge then disclosed that he had received tickets from the firm both to the JQC and to Walmart attorneys; however, according to the Notice, “(y)our subsequent disclosure to the parties on October 9, 2015, stated only that, ‘I previously received Tampa Bay Rays baseball tickets from the…law firm.’  Your disclosure did not include the dates that you accepted the tickets, nor did you even explain that you had accepted the tickets while the Wittke matter was pending.”  The JQC Notice also states that the judge received baseball tickets from two other law firms which have appeared before him.

The JQC rules prohibit judges from conducting activities outside of the courtroom which cast a reasonable doubt on his or her ability to be impartial, undermine the judge’s independence, or demean the judicial office and from “accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge.”

The JQC rules provide that the judge may file an answer to the Notice and charges within 20 days. The JQC will hold hearings and make a recommendation to the Florida Supreme Court, which will issue a formal order/opinion and impose discipline if the judge is found guilty.

Bottom line: This is a somewhat extraordinary and surprising case.  Perhaps the judge was unaware of the rules prohibiting accepting gifts from lawyers, specifically when the case is pending before him; however, under the most unfavorable argument, the judge could be alleged to have accepted the gift and issued favorable ruling as a direct result of the law firm’s gift.  Both lawyers and judges must be very aware of these clear prohibitions and also that the consequences of a violation of the rules, whether intentional or unintentional, will most likely be very severe.

Be careful out there!

Disclaimer:  this e-mail 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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Florida judge ethics, Florida Judicial Canons, Florida Judicial Qualifications Commission, joe corsmeier, Joseph Corsmeier, Judge ethics accepting gifts, Judicial ethics, Judicial ethics accepting gifts from lawyers with pending cases