Monthly Archives: June 2016

Florida Bar’s Board of Governors will vote on substantial revisions to Bar rules related to lawyer referral services

Hello everyone and welcome to this Ethics Alert blog which will discuss the proposed revisions to the lawyer referral Bar rules which would change the names to “matching services” and “qualifying providers” and substantially revise the existing referral rules.  The proposed rule revisions are here:  http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/D8FFF4171E28E5C085257FA300648D6B/$FILE/4-7.22%20et%20al%20legislative.pdf?OpenElement

The proposed rules address for-profit companies that link lawyers with consumers needing legal work and are designed to prevent fee splitting between those companies and lawyers and protect the public from deceptive, misleading, or false advertising by those companies.  Under the proposed amendments, any private entities that connect consumers looking for legal services with lawyers are called “qualifying providers” regardless of whether they are a “traditional” referral service (ASK-GARY, 411 PAIN) or a technology-based provider (AVVO, LegalZoom).

The Florida Bar’s Board of Governors (BOG) received an updated report on May 20, 2016 from Carl Schwait, chair of the Board Review Committee on Professional Ethics.  That BOG committee was working on the rules with the BOG’s Technology Committee, chaired by board member John Stewart, since last year when the Florida Supreme Court rejected the Bar’s proposed rule amendments on for profit lawyer referral services.

The BOG is scheduled to vote on the proposed amendments at its July 29, 2016 meeting.  If approved, the amendments must be filed with the Supreme Court by August 15, 2016 and the Court must also approve and issue an Order implementing them.

The Florida Bar’s website has a page summarizing the proposed revisions to the rules and also has a frequently asked questions section and comparison chart.  The link to the page is here:  http://www.floridabar.org/proposedlrsamend#Overview and the summary of the proposed rule changes is below:

OVERALL CHANGES TO RULE

Terminology

“Qualifying Provider” instead of “lawyer referral service”

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Broader definition of “qualifying provider” including:

Directories

On-line matching services

Group or pooled advertising programs

Tips or leads programs

REQUIREMENTS RETAINED

Ads for qualifying providers must comply with lawyer advertising rules

Lawyers may not divide fees with qualifying providers (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must match consumers only to those authorized to provide the services in Florida

Qualifying providers must respond to official bar inquiries within 15 days

Qualifying providers may not state or imply bar endorsement (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must use their actual names or a registered fictitious name

DELETED REQUIREMENTS

Malpractice insurance

Lawyer referral services and other qualifying providers find it difficult if not impossible to obtain malpractice insurance that covers lawyers who are in different firms

Most lawyers are not required by bar rules to carry malpractice insurance (currently only lawyers participating in either for-profit or Florida Bar or voluntary bar lawyer referral services or Florida bar-approved group or pre-paid legal insurance plans are required to carry malpractice insurance)

Disclaimer in all ads that it is a lawyer referral service

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Requiring the disclaimer creates problems in states where lawyer referral services are prohibited

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Disclaimer in all ads that lawyers pay to participate

It is obvious to most consumers that they are for-profit

Some qualifying providers do not charge lawyers to participate, but make money by selling advertising space or by charging consumers to participate

Requirement that all services provide The Florida Bar quarterly with names of all those authorized to act on behalf of the service

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

CHANGED REQUIREMENT

Report to the bar of the names of all participating lawyers changed from quarterly to annual

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

NEW REQUIREMENTS

Qualifying providers:

may not require or pressure the lawyer to provide cross referrals

must give participating lawyers documentation of compliance with bar rules

must disclose participating lawyers’ location by city, town or county when the referral is made

may not use a name or otherwise imply to the public that the qualifying provider is a law firm, can practice law or directly provide legal services

REQUIREMENTS CONSIDERED BUT NOT RECOMMENDED 

Florida Supreme Court requested amendment that requires that lawyer referral services be owned or operated by a Florida Bar member

The BRC and Technology Committees discussed extensively and voted not to include the proposal

The Court already has regulatory authority over participating lawyers

Lawyers will become scapegoats for unscrupulous services

Services who are in compliance should not be penalized

Rules should be no more restrictive than is necessary to protect the public and ensure lawyer’s adherence to professional requirements

Defining ownership and operation is difficult and no parameters have been provided by the Court

FILING

Amendments will be considered for final action by The Florida Bar Board of Governors at its July 29, 2016 meeting in Miami Beach Comments may be sent to eto@floridabar.org – if filed with the bar by June 30, they will be provided to the board for its meeting

Petition to amend the rule will be filed with the Florida Supreme Court August 15, 2016

Comments may be filed directly with the Florida Supreme Court between August 15, 2016 and September 15, 2016

Bottom line:  If these rules are approved by the BOG (and the Florida Supreme Court), they will substantially change the landscape for lawyer referrals and the requirements for providers and lawyers to participate in “matching services”; however, although the Florida Supreme Court strongly suggested that only lawyers own the services, the rules do not limit ownership nor do they limit the referrals only to lawyers.

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.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

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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Eighth Circuit Appeals Court reverses trial court and permits law firm to withdraw for client’s failure to pay fees and fulfill obligations to lawyer

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Eighth Circuit Court of Appeals reversing a trial court order and permitting a law firm to withdraw because of the client’s failure to pay the firm’s fees and to provide the firm with information “critical for its defense.”  The case is Sanford v. Maid-Rite Corporation, Case No. 15-2424, and the opinion is here:  http://media.ca8.uscourts.gov/opndir/16/03/152424P.pdf

According to the opinion, the underlying matter involved a class action filed by current and former franchisees against Maid-Rite. The allegations were that Maid-Rite made false representations regarding the company’s profitability that induced them into purchasing the franchises.  In September 2014, Maid-Rite and the other defendants retained the law firm as counsel. The engagement letter provided that the law firm would bill on an hourly basis and the firm “reserved the right to withdraw from this representation for good cause.”  “Good cause” included the failure to make timely payments and the failure to follow the firm’s advice on a “material matter.”

The opinion states that the client paid one invoice but failed to pay any more invoices and the firm “repeatedly advised them that the firm would seek to withdraw unless their outstanding bills were paid. Although defendants promised several times to pay the invoices, they did not and a significant unpaid balance resulted. Defendants also repeatedly failed to provide Larkin with information critical for its defense.”  On January 28, 2015, the firm moved to withdraw and, on April 16, 2015, the magistrate judge stayed discovery while the district court considered the motion. The district court affirmed on June 5, 2015 and the firm filed an interlocutory appeal with the federal Eighth Circuit Court of Appeals.

The opinion applied the Minnesota Rules of Professional Conduct, which permit a lawyer to withdraw if:

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

The Minnesota Bar Rule also requires the lawyer to show good cause and notify the client of the motion to withdraw.  The opinion found that the firm met all the requirements to file a motion to withdraw and; therefore, a presumption arose that the firm would be permitted to withdraw. The opinion also stated that “there was no rebuttal to the presumption that withdrawal was appropriate since there was no evidence that the firm waited too long to withdraw and the discovery period was still open. There was also no prejudice to any third parties.”  The opinion reversed the trial court’s order as an abuse of discretion. And permitted the firm to withdraw.  The opinion followed Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537 (7th Cir. 2002), which held that a law firm could file an interlocutory appeal to challenge the denial of a motion to withdraw.

Bottom line:  Lawyers who would like to withdraw from representing a client must be prepared to cite a proper basis for the withdrawal under the Bar rules, whether it is permissive or mandatory.  This law firm’s motion to withdraw in the federal case was denied by the trial court; however, the firm was permitted to file an interlocutory appeal challenging the denial, and the appeals court granted the withdrawal.  Not all jurisdictions may permit interlocutory appeals of such an order and, in most jurisdictions (including Florida), if the court does not permit the withdrawal (and any appeals are exhausted), the lawyer is required to continue the representation, notwithstanding any financial burden and/or the failure of the client to fulfill his or her obligations.

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 votes to prohibit actors from reading client testimonials in lawyer advertisements

Hello everyone and welcome to this Ethics Alert blog which will discuss the May 2016 decision of the Florida Bar’s Board of Governors (BOG) to prohibit client testimonials read by actors in lawyer advertisements.

According to an article in the June 15, 2016 Florida Bar News, the BOG debated whether accept or reject a Bar Advertising opinion stating that lawyers are prohibited from using actors to read (and dramatize) client testimonials.  The 2013 revisions to the Florida Bar advertising rules permit the use of client testimonials if certain requirements are met, including that the lawyer not write the testimonial or pay the client for it.  The current advertising rules also permit lawyers to use an actor in a lawyer advertisement if it has the required disclaimer(s).

The BOG reviewed two proposed television advertisements submitted by a law firm.  The first advertisement had the following language in testimonial form: “When I was injured in my car accident, my first thought was: How will I be able to take care of my family? That’s why I called the law offices of . . . . They made sure I could continue to take care of my family with $650,000 in insurance compensation for my car accident injuries.”  The second advertisement had this testimonial language: “I love sports . . . baseball, soccer, all kinds of sports, but after my car accident, I wasn’t sure if I would be able to enjoy playing sports again. I called the law offices of . . . and they helped get me back in the game with a $100,000 insurance settlement.”  Both were to be read by actors.

According to the Bar News article, the chair of the BOG Review Committee on Professional Ethics stated that the BOG committee voted 7-2 to recommend the advertisements violated Florida Bar Rule 4-7.13, which prohibits deceptive and misleading advertisements.   The BOG Review Committee agreed with the Bar advertising staff opinion and the Standing Committee on Advertising which had found that having an actor read a client testimonial would violate the Bar advertising rules.

On a voice vote, the BOG approved the BOG Review Committee on Professional Ethics’ recommendation to reject the proposed advertisements because they violate Florida Bar Rule 4-7.13 prohibiting deceptive and misleading advertisements.

Bottom line:  Lawyers who advertise must be aware that the 2013 revisions to the Florida Bar’s Advertising Rules have somewhat dramatically altered the landscape of advertising in Florida.  The rules now specifically permit both testimonials (with certain requirements) and actors in advertisements (with disclaimers); however, in this decision, the BOG made it clear that actors cannot read such testimonials in lawyer advertisements in Florida.

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.

Please note:  Effective June 27, 2016, my new office address will be: 29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761.  E-mail addresses and telephone numbers below will remain the same.  I may also have limited telephone service on Thursday, June 23 and Friday, June 24; however, my e-mail service should still be available 

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 2013 comprehensive lawyer advertising rules, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising actors, Lawyer advertising testimonials, Lawyer advertising testimonials read by actors, Lawyer ethics, Lawyer Ethics and Professionalism

Ohio Supreme Court suspends lawyer who engaged in sexually oriented text messages with a client

Hello everyone and welcome to this Ethics Alert blog which will discuss the June 14, 2016 Ohio Supreme Court disciplinary opinion suspending a lawyer for one year (with six months stayed) for engaging in voluntary sexually explicit text messages and photos with a client.  The case is Disciplinary Counsel v. Bartels, Case No. 2015-1638, Slip Opinion No. 2016-Ohio-3333 and the opinion is here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-3333.pdf

The Ohio Office of Disciplinary Counsel charged a lawyer named N. Shannon Bartels in 2014 with violating the Ohio Bar rule prohibiting a lawyer from soliciting or engaging in sexual activity with a client, unless a consensual sexual relationship existed before the client-lawyer relationship began.  The lawyer was alleged to have had sexual conversations in hundreds of text messages with the client, who had retained her to handle his divorce.

According to the opinion, “(i)n November 2012, Troy Bailey retained Bartels to represent him in his divorce. The divorce was finalized by court entry in July 2013. However, commencing in late February or early March 2013, Bartels and Bailey began exchanging multiple text messages with each other that were sexually oriented. The messages continued for approximately one month and were mutual and reciprocal in their sexual content, but Bartels and Bailey did not actually engage in sexual intercourse with each other.”

After learning of the texts and the relationship, the client’s girlfriend tried to blackmail the lawyer by threatening to send the text messages to authorities if the client did not get what he wanted in his divorce and receive a refund of the fees that the client paid to represent him in the divorce.  The lawyer ultimately reported the threats to law enforcement and the client and the girlfriend were charged with crimes.  The client and his girlfriend (Ann Perkins) both pled guilty to obstructing justice, a fifth-degree felony, and were placed on probation for two years.

The lawyer had previously been publicly reprimanded in 2010 for engaging in a sexual relationship with a married client and the opinion stated “(b)ecause this is Bartels’ second disciplinary action within five years for a violation of the same rule and her responses to the questions at the hearing indicate a lack of awareness of the nature of her wrongdoing, we conclude that the board’s recommended sanction (of a one year suspension) is the more appropriate option.”

The opinion imposed the one year suspension with six months of the suspension stayed subject to the conditions that the lawyer receive training on proper communications and interactions with clients, and also serve one year of monitored probation when her license is reinstated.  In addition to the training and probation, the lawyer must also not commit further misconduct and pay the costs of the proceedings.

Bottom line:  Even in our age of text messaging and electronic/digital communications, the conduct of this lawyer seems to be inexplicable.  As the Ohio Supreme Court opinion makes very clear, lawyers should never engage in sexual conduct with a client, particularly in divorce/family law matters.  The only potential exception is if the consensual relationship began before the representation; however,

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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Association of Professional Responsibility Lawyers (APRL) issues report recommending substantial revisions to advertising and solicitation rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent report of the Advertising Committee of Association of Professional Responsibility Lawyers (APRL) recommending revisions to the lawyer solicitation rules.  The April 26, 2016 report of the APRL Regulation of Lawyer Advertising Committee is here:  https://www.aprl.net/publications/downloads/APRL_2016_Lawyer-Advertising-Supplemental-Report_04-26-16_w-Attach.pdf

The APRL Advertising Committee’s previous report dated June 22, 2015, discussed concerns about overly restrictive and inconsistent state regulation of lawyer advertising, particularly related to electronic media advertising. That APRL report recommended substantial revisions to the lawyer advertising rules “to achieve greater rationality and uniformity in regulatory enforcement of lawyer advertising and marketing and proposed a new Model Rule 7.1 to replace ABA Model Rules 7.1, 7.2, 7.4 and 7.5 and by the use of non-disciplinary means to address most complaints about lawyer advertising.” The June 22, 2015 APRL report is here: https://www.aprl.net/publications/downloads/APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf

The June 22, 2015 report further states: “It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising.  The Committee recommends that the ABA Model Rules governing communications about legal services be consolidated into a single disciplinary rule that simply prohibits false or misleading statements.  Adopting this approach to advertising regulation, combined with reasonable uniform enforcement policies and protocols by state disciplinary authorities, is in the Committee’s view the best way to ensure honest communication by lawyers while at the same time promoting the widest possible access by the public to legal services.”

Current ABA Model Rule 7.3 (solicitation) states:

(a)  A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…

According to the April 26, 2016 report, “(t)he Committee has now considered the solicitation rules and has concluded that the legitimate regulatory objectives of preventing overreaching and coercion by lawyers who use in-person solicitation and targeted communications with the primary motivation of pecuniary gain can best be achieved by combining provisions of Model Rules 7.2 and 7.3 in a single rule. The Committee’s proposed revisions of Model Rules 7.2 and 7.3 in the form of new Rule 7.2 is set forth in Attachment A. The Committee’s revised rule both defines solicitation and distinguishes solicitations that are prohibited from those that are permitted with appropriate protections.”

The proposed rule is below:

Rule 7.2 Solicitation of Clients Solicitation

(b) Except as provided in paragraphs (c) and (e), a lawyer shall not solicit in person by face to-face contact or live telephone, or permit employees or agents of the lawyer to solicit in person or by live telephone on the lawyer’s behalf, professional employment from a prospective client when a significant motive for doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; (2) is a sophisticated user of legal services; (3) is pursuant to a court-ordered class action notification; or (4) has a family, close personal, or prior professional relationship with the lawyer.

The proposed rule revision would still prohibit “in person” solicitation by a lawyer or the lawyer’s agent “face-to-face” or via “live telephone”, “when a significant motive for doing so is the lawyer’s pecuniary gain.” The proposed rule would permit solicitation if the person:

(1) is a lawyer;

(2) is a sophisticated user of legal services;

(3) is pursuant to a court-ordered class action notification; or

(4) has a family, close personal, or prior professional relationship with the lawyer.

The proposed rule would remove the provision in the current model rule which applies the solicitation rule to chat-room communications and would expressly allow a lawyer to solicit a “sophisticated” user of legal services, which it defines as “an individual who has had significant dealings with the legal profession or who regularly retains legal services for business purposes.”  The committee stated that it believes that such a sophisticated user does not need the protection of the lawyer-conduct anti-solicitation standards because of his or her sophistication.   APRL is attempting to present these proposals to the ABA House of Delegates in 2017.

Florida’s current direct contact/solicitation rule is below:

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a)        Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not:

(1)        solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules.

As I reported in my August 20, 2015 Ethics Alert, The Florida Bar’s Board of Governors reversed a Bar Advertising Committee opinion that text messages were direct contact/solicitations 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 also 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 disregard the text.  The text must also disclose how the law firm got the recipient’s name.  The August 20, 2015 Ethics Alert is here: https://jcorsmeier.wordpress.com/2015/08/20/florida-bar-board-of-governors-finds-that-unrequested-texts-to-prospective-clients-on-specific-matters-are-not-prohibited-solicitations/

Bottom line:  The APRL’s proposed solicitation rule is a long way from implementation.  Even if the provision is approved by the ABA, the Model Rule is non-binding and each individual state Bar and Supreme Court would have to approve it for it to be implemented and become binding in those states.

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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Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising and solicitation APRL report, Lawyer ethics, Lawyer Ethics and Professionalism

New York State Bar ethics opinion addresses ethics issues when a lawyer copies a client with communications to opposing counsel

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York State Bar Association Ethics Opinion addressing ethics issues related to a lawyer sending correspondence to opposing counsel and copying the client.  The Ethics Opinion is NYSBA Ethics Op. 1076 (Dec. 2015) and the opinion is here:  http://www.nysba.org/CustomTemplates/Content.aspx?id=60757

The opinion specifically addresses whether a lawyer must obtain the consent of opposing counsel before he or she can blind copy the client on correspondence to opposing counsel. The opinion states that “(t)wo opposing lawyers do not have a relationship of confidentiality.   Consequently, a lawyer who receives correspondence from opposing counsel is not obligated under the Rules of Professional Conduct (the “Rules”) to maintain the confidentiality of those communications.  A lawyer does not need the ‘consent’ of opposing counsel to send the client copies of correspondence between the inquirer and opposing counsel.  Since a lawyer is an agent of the lawyer’s client, opposing counsel should expect that the lawyer may share correspondence relating to the representation with the client.”

The opinion also states that the lawyer does not engage in “dishonesty, fraud, deceit or misrepresentation” when he or she send the client copies of correspondence with opposing counsel.  The opinion noted that sending the client copies of communications with opposing counsel may be the easiest way for the lawyer to comply with his or her duties under the Bar rules to keep the client reasonably informed about the status of the matter as well as the lawyer’s duty to provide the client with information that is reasonably necessary for the client to make informed decisions about the representation.

The opinion cautioned that copying or blind copying the client on e-mails with opposing counsel is not the best practice and provided a list of reasons not to copy or blind copy the client, which are below:

Reasons Not to Use Either “cc:” or “bcc:” When Copying e-mails to the Client

Although it is not deceptive for a lawyer to send to his or her client blind copies of  communications with opposing counsel, there are other reasons why use of the either “cc:” or “bcc:” when e-mailing the client is not a best practice.

As noted above, “cc:” risks disclosing the client’s e-mail address.  It also could be deemed by opposing counsel to be an invitation to send communications to the inquirer’s client.   But see Rule 4.2, Cmt. [3] (Rule 4.2(a) applies even though the represented party initiates or consents to the communication).

Although sending the client a “bcc:” may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.”  For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation,  the inquirer bccs his or her client, and the client hits “reply all” when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6.  See Charm v. Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would respond without “tak[ing] careful note of the list of addressees to which he directed his reply”).

Bottom line:  Many lawyers copy or blind copy the client with e-mails to opposing counsel (and others).  Although it may take additional time, the best practice would be to send a separate e-mail to the client or forward the e-mail to the client after it has been sent.

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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Can a referring lawyer be held liable for the referral lawyer’s malpractice?

Hello everyone and welcome to this Ethics Alert blog which will discuss whether a lawyer could be potentially liable for another lawyer’s legal malpractice (and potential Bar rule violations) by making a referral.  The short answer is yes.  Of course, under the Florida Bar lawyer disciplinary rules and most, if not all, jurisdictions, it is certainly ethical for a lawyer to refer a case to another lawyer and receive a referral fee; however, there are certain requirements under the rules and the referring lawyer might be held liable for any malpractice by the referral lawyer.

In Noris v. Silver, 701 So. 2d 1238 (Fla. 3rd DCA 1997), which is here: http://www.legalmalpracticelawreview.com/wp-content/uploads/sites/271/2012/03/Noris.pdf, the plaintiff was injured when a vehicle struck his bicycle in Chicago, Illinois. The plaintiff contacted an appellate attorney in Florida (Silver) who did not handle personal injury cases.  The Florida lawyer then referred the matter to another lawyer (Falk) to whom he had previously referred cases and received a referral fee.  The fee agreement with the referral lawyer did not disclose a fee arrangement with the referring lawyer, which violated Florida Bar Rule 4-1.5(g).  The referral lawyer then failed to file the case before the expiration of the Illinois two-year statute of limitation for personal injury claims and the client sued the Illinois lawyer and the referring Florida lawyer for malpractice.

The opinion stated:  “In the instant case, there is a genuine issue of material fact as to whether Silver retained a financial interest in plaintiff’s personal injury case by entering into an express or implied agreement to divide the legal fee.”  “This issue of fact is material because pursuant to Rule Regulating The Florida Bar 4-1.5(g), if Falk and Silver agreed to divide the attorney’s fee, Silver would be liable for the malpractice committed by Falk.”

“Attorneys in different firms may divide fees under two circumstances: first, if the ‘division is in proportion to the services performed by each lawyer,’ R. Regulating Fla. Bar 4-1.5(g)(1); and second, if the client agrees in writing and the agreement discloses “the basis upon which the division of fees will be made,’ R. Regulating Fla. Bar. 4-1.5(g)(2).  Moreover, when fees are divided pursuant to Rule 4-1.5(g)(2), ‘each lawyer assumes joint legal responsibility for the representation….’  Therefore, if Silver and Falk agreed to divide the attorney’s fee, Silver would be liable for the malpractice committed by Falk.” (emphasis added).

“It is true that if Falk had recovered attorney’s fees, Silver could not have enforced the purported oral agreement against Falk since the agreement did not comply with Rule 4-1.5(g)(2).  See Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 185 (Fla. 1995).  However, we find that the failure to comply with Rule 4-1.5(g) cannot be used to shield a referring attorney from a legal malpractice claim made by a client. (emphasis added). To hold otherwise would allow attorneys to thwart their responsibility to a client by intentionally disregarding the Rules Regulating The Florida Bar. This cannot be condoned. It would also be unfair to lawyers who comply with Rule 4-1.5 to allow an avenue of escape for those who do not.  Accordingly, we hold that if Falk and Silver agreed to divide the attorney’s fees, then Silver is legally responsible for the malpractice committed by Falk.” (emphasis added).

“We point out that in order for the plaintiff to prevail, the plaintiff must prove that there was an express or implied agreement between the referring attorney, Silver, and the working attorney, Falk, to divide the legal fee. The plaintiff can prove this by showing that there was an express agreement for division of the fee. Alternatively, plaintiff can show that there was an implied agreement, for example by showing a past course of dealing whereby it was understood between the two attorneys that a fee would be paid in exchange for referrals. When the summary judgment record is read in the light most favorable to the plaintiff as nonmoving party, the evidence supports the existence of an implied agreement for division of the fee in this case.”

Bottom line:  This case involved a lawyer who referred a personal injury matter which occurred in another state to a lawyer who practiced in that state.  In Chandris v. Yanakakis, the Florida Supreme Court stated that a contingent fee agreement between a Florida lawyer and an out of state law firm in a Florida case lawyer is void.  The opinion stated:  “We have determined that the requirements for contingent fee contracts are necessary to protect the public interest. Thus, a contract that fails to adhere to these requirements is against public policy and is not enforceable by the member of The Florida Bar who has violated the rule.”  (Emphasis added).  The opinion is here:  http://archive.law.fsu.edu/library/flsupct/82934/op-82934.pdf.

Lawyers must be aware that, in Florida (and most, if not all jurisdictions), if a matter is referred to another lawyer and the referring lawyer expects to receive a referral fee, there must be a written fee agreement which discloses “the basis upon which the division of fees will be made” and “each lawyer assumes joint legal responsibility for the representation.”

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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Filed under Attorney Ethics, Florida Bar, Florida Bar rule 4-1.5 resolution of extraordinary liens, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer referral fees, Lawyer referral fees legal malpractice, Lawyer referral fees void under Chandris, Lawyer referrals liability for legal malpractice