Monthly Archives: May 2016

Illinois lawyer censured for settling deceased client’s injury case without informing court or opposing counsel of the death

Hello and welcome to this Ethics Alert which will discuss the recent censure of an Illinois lawyer for settling a deceased client’s personal injury case without informing court or opposing counsel of the client’s death.  The case is In the Matter of: Anthony Patrick Gilbreth, No. 6289576, Commission No. 2015PR00100 (Ill. SC May 18, 2016).  The summary of the censure is here: http://www.illinoiscourts.gov/supremecourt/Announce/2016/051816.pdf.

The lawyer’s law firm filed a lawsuit against Orthotic & Prosthetic Lab (O&P) on behalf of a client in 2008 which alleged that a prosthesis that O&P had designed, manufactured, and sold had failed.  The client subsequently died in January 2013 and, in August 2013, his son was appointed administrator of the estate.  In September 2013, O&P offered to settle the case for $110,000.00.  The lawyer responded and stated that his client had instructed him to accept it.

The Illinois Attorney Registration and Disciplinary Commission’s (ARDC) petition for discipline states: “At the time of the settlement, defense counsel was unaware because (the lawyer) had not told him that (the client) had died.” “(The lawyer) withheld the fact of (the client’s) in part because he knew that (the client’s) death would reduce the value of any claim for damages.  (The lawyer) also felt that it would be improper to reveal (the client’s) death because (the lawyer)  thought that information was confidential under Rule 1.6 of the Illinois Rules of Professional Conduct, and its revelation would harm his former client’s claim. (The lawyer) did research the issue and discussed it with other attorneys in his firm, but did not research ARDC case precedent, discussed infra, in which attorneys have been disciplined for failure to disclose his or her client’s death under similar circumstances.”

According to the petition for discipline, on November 15, 2013, the lawyer sent defense counsel an amended release and informed him that the client had died and that the client’s son had been appointed administrator of the estate.  Defense counsel responded by informing the lawyer that the settlement (which had not yet been paid) was no longer valid. The trial court allowed the client’s son to substitute in as plaintiff on January 21, 2014, and granted the lawyer’s motion to enforce the settlement agreement. The defendant appealed and the appeals court vacated the trial court’s order enforcing the settlement.

The appeals court found that, since the client had died, there was no plaintiff on the date of the purported agreement to settle the case and also that the lawyer’s arguments for concealing the death of his client to be “specious and incredible.”  The appeals court also stated: “in failing to disclose the fact of the plaintiff’s death, Mr. Gilbreth intentionally concealed a material fact that would have reduced the overall value of the claim for damages.”  The court remanded the case to the trial court and, as of the date the parties filed the joint motion to approve the petition to impose discipline on consent, the case filed on behalf of the client remained pending. The lawyer’s Answer to the disciplinary charges is here:  http://www.illinoiscourts.gov/supremecourt/Announce/2016/051816.pdf.

The petition for discipline stated, in mitigation, that the lawyer had not been disciplined since his 2006 admission to practice.  In addition, five lawyers, a reverend from Columbia, and a judge would testify that the lawyer has a good reputation for truth and veracity, the lawyer was cooperative in the disciplinary proceedings, and was remorseful for his conduct.  In aggravation, the petition stated that the lawyer’s “actions in attempting to enforce the settlement, even after being supplied with controlling precedent, caused the defendant to incur the expenses of an appeal to obtain a ruling that the settlement was invalid.”  The ARDC petition for discipline is here: https://www.iardc.org/rd_database/rulesdecisions.html  (type in lawyer’s name).

Bottom line:  This Illinois disciplinary case illustrates the paramount importance of candor in a lawyer’s representation of a client.  The lawyer believed that the information related to the death of the client was confidential; however, the appellate court decision found that the lawyer’s duty of candor supersedes attorney/client confidentiality.

Be careful out there.

Disclaimer:  this Ethics Alert  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 Bar Board of Governors approves Florida Bar advertising rule amendment regarding lawyer’s use of “expert” and “specialist”

Hello and welcome to this update of my May 19, 2016 Ethics Alert regarding the Florida Bar Board of Governors’ final review of the proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise in advertisements.  The BOG approved the rule amendment as drafted at its meeting on May 20, 2016 in Palm Beach.  The approved amendment is below with the relevant new language in italics:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  As I previously said, it remains to be seen whether this rule amendment is in compliance with the federal court’s order and the United States Constitution on its face and as applied.  If the Bar reasonably interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it may be found to be constitutional if challenged.  Another potential constitutional challenge would be that the rule is vague and ambiguous on its face.  The rule amendment must now be reviewed and implemented by the Florida Supreme Court to become effective.  Stay tuned…

Disclaimer:  this Ethics Alert  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 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers use of specialization and expertise ethics

Florida Bar Board of Governors will consider final action on rule amendment regarding use of “expert” and “specialist”

Hello and welcome to this Ethics Alert blog which will discuss the upcoming Florida Bar Board of Governors meeting this week in Palm Beach wherein the BOG is scheduled to vote on final action regarding a proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise.

The proposed amendment was drafted in response to a Southern District of Florida federal district court judge’s September 30, 2015 Order/injunction which found that the Bar’s prohibition of non-certified lawyers from stating they have expertise or specialize in an area of law unless they were Board certified was unconstitutional as applied and enjoined its enforcement.

The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcement of the rule.  The federal case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The federal injunction order is in the federal court’s Pacer system here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

The BOG will consider final action on the proposed rule amendment at its meeting on May 20, 2016.  The proposed amendment is below (with the new substantive language in italics):

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  If the BOG approves the proposed Rule amendment, it remains to be seen whether it will be applied in compliance with the federal court’s order and the U.S. Constitution.  If the amendment is approved and the Bar rationally interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it will most likely be found to be constitutional if it is challenged.  Another potential challenge would be on the ground that the rule is unconstitutionally vague and ambiguous on its face.  Stay tuned…

…and be careful out there.

Disclaimer:  this Ethics Alert  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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 Comment

Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising rules, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism