Monthly Archives: July 2016

Online mechanic’s lien settlement software company Zlien settles Ohio unauthorized practice of law complaint

Hello and welcome to this Ethics Alert blog which will discuss the recent (July 20, 2016) Order approving the settlement of an Ohio unauthorized practice of law (UPL) complaint filed by the Cleveland Metropolitan Bar Association (CMBA) against an online mechanic’s lien settlement software maker called Express Lien, Inc. (d/b/a Zlien) and dismissing the complaint.  The case is Cleveland Metropolitan Bar Association v. Express Lien, Inc. dba Zlien et al, case number Case No. UPL 15-01.  The Ohio Supreme Court UPL Board’s Order approving the settlement and dismissing the complaint is here:  http://www.supremecourt.ohio.gov/Boards/UPL/settlement/UPL15-01.pdf

The CMBA filed the UPL complaint in May 2015 against Express Lien Inc. (Zlien) alleging that it was enabling non-lawyers to practice law in Ohio.  Zlien claimed that its platform streamlined the process of filing lien documents by facilitating the filing of those documents by its users and that it was not engaging in or enabling UPL.

According to the Order, the UPL complaint alleged that Zlien was illegally practicing law when Zlien “Director of Client Experience” Gretchen Lynn allegedly prepared, signed and attempted to file a lien against an Ohio property on behalf of Midwest Interiors LLC. The complaint stated that Ms. Lynn was not a lawyer in Ohio and Zlien was not registered with the Ohio Secretary of State.

The Cuyahoga County Fiscal Office rejected the lien because it was filed 33 days past the 75-day window to file.  The CMBA then initiated an investigation which led to the filing of the complaint.  Zlien stated that the affidavit was completed using aggregated information and it is “a technology powered scrivener” that “merely copies verbatim” user provided information.

In response to the UPL complaint, Zlien file a lawsuit in Louisiana federal court in July 2015 against the CMBA, the Ohio State Bar Association, and other entities and individuals alleging, inter alia, that the Bar was attempting to unconstitutionally restrict commercial or political speech and engaging in unfair trade and competition practices in applying and enforcing Ohio’s UPL statutes.  Zlien’s federal lawsuit is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/express_lien_complaint.authcheckdam.pdf

Zlien’s federal complaint cited to the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners which struck down the enforcement of regulations by North Carolina’s dental board, which had attempted to prohibit teeth whitening by non-dentists.  In that case, the Supreme Court stated that the regulation of a profession by licensees in the same profession violated federal antitrust laws.

The UPL settlement agreement states that Zlien has agreed not to sign any mechanic’s lien affidavits unless it is a party or can practice law in the jurisdiction.  The company also agreed not to select the property descriptions inserted in lien affidavits or advise customers on which property descriptions to use.  Zlien also agreed to require its users to sign generated lien documents themselves rather than appointing the company to sign for them through power of attorney.

Zlien issued a public statement through its chief legal officer related to the settlement: “Technology has advanced to the point where it can put groups that change at a slower pace – like bar associations – in unfamiliar and potentially uncomfortable situations.” “Software can’t practice law, and people still need lawyers for certain tasks, but things that technology can do are not the things for which lawyers are required.”

Bottom line:  This is more fallout from the U.S. Supreme Court’s 2015 North Carolina dental whitening decision and also involves an online legal document generator/provider. The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015) and the opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.  My Ethics Alert blog discussing the case is here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/  and a recent list of other cases which have been filed after that decision is here:  https://media.nasba.org/files/2015/12/2016-0714-Board-Immunity-Cases-Table.pdf

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.

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. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Bar antitrust, BAR UPL antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Non-lawyer practicing law, North Carolina Dental Board, North Carolina dental whitening case and UPL, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit, Zlien UPL lawsuit and settlement

Pennsylvania woman who impersonated a lawyer for 10 years is sentenced to 2 to 5 years in prison

Hello and welcome to this Ethics Alert blog which will update my March 30, 2016 blog and discuss recent sentence of a Pennsylvania woman who impersonated a lawyer for 10 years.  The case is Commonwealth of Pennsylvania v. Kimberly M. Kitchen, case number CP-31-CR-0000274-2015 (Court of Common Pleas of Huntingdon County).  The court docket is here:  https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-31-CR-0000274-2015

According to media reports, the woman was a partner at a Pennsylvania law firm when her actions were discovered later that year.  In the winter of 2014, attorney Gregory Jackson was creating a seniority list for the Huntingdon County Bar Association (for whom the lawyer had previously served as President) but could not find any information on her indicating that she was a lawyer.  He then reported her.

She had spent the previous 10 years impersonating a lawyer when the state attorney general’s office brought criminal charges against her in 2015.  According to the criminal charges and media reports, the individual created fictitious bar examination results and a law license and also a false check for the state attorney registration fee.  She also created a false e-mail purportedly showing that she attended Duquesne University law school.

The individual had handled estate planning for clients and was made a partner at her firm.  Her law firm biography page (which has been deleted) claimed that she spent a decade as a paralegal at another firm in Pittsburgh and that she graduated summa cum laude from Duquesne law school.

On March 24, 2016, the individual was found guilty of misdemeanor UPL, misdemeanor forgery, and felony tampering with a public record/information.  On July 19, 2016, the judge sentenced her to two to five years in prison.  According to online media reports, the prison sentence was “on the higher end of the sentencing guidelines”.  The judge stated that there were several reasons for the sentence, including: “not only did she pretend to be a lawyer but she pretended to be the best and biggest around.”

Two of the media reports are here: http://www.abajournal.com/news/article/one_time_law_firm_partner_without_law_degree_is_sentenced_for_unlicensed_pr and here: http://wjactv.com/news/local/huntingdon-county-woman-exposed-as-a-fraudulent-lawyer-sentenced-to-prison

Bottom line:  This individual appears to have been successful in boldly impersonating an attorney and pretending “to be the best and biggest around” for over ten years.  She was made a partner and served as a county Bar president using the false credentials and a nonexistent license to practice.  She was ultimately discovered and will now serve 2 to 5 years in prison.  The takeaway:  lawyers must be very wary and be sure to fully investigate any lawyer that are being considered for employment.  It is easy to do this in Florida, just go here: Florida Bar find a lawyer.

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. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

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Filed under fraud, joe corsmeier, Joseph Corsmeier, Non lawyer fraud impersonating lawyer prison, Non lawyer impersonating lawyer criminal conviction, Unauthorized practice of law, Unlicensed practice of law, UPL fraud impersonating lawyer

N.J. Supreme Court reverses reprimand and dismisses complaint against lawyer who posted allegedly confidential information on his website

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New Jersey Supreme Court opinion reversing a Disciplinary Review Board’s reprimand recommendation and dismissing a complaint against lawyer who was alleged to have posted client confidential information on his website.  The disciplinary case is In the Matter of Jay J. Chatarpaul, Docket No. 15-134 (July 15, 2016).  The opinion is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1073877 and the Review Board’s Decision is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1068061

According to the Decision, the disciplinary complaint originated from a discrimination lawsuit filed by the lawyer against Rite Aid on behalf of his client Rameena Khan, which was ultimately settled. The settlement agreement stated:

Plaintiff’s Attorney agrees that as of the execution of this Agreement, it [sic] has removed: (a) any and all articles, blogs, or other writings that have been authored, posted, publicized or controlled by it [sic], which disparage or discuss the Lawsuit, Complaint, Federal Action, Amended Complaint, the Trial or the Appeal in any manner whatsoever, from the Internet and elsewhere, including but not limited to the articles attached hereto as Exhibit A; and (b) all hyperlinks and references to said articles from the Internet. In addition, [respondent] agrees not to write any further articles or blogs, or make any nonprivileged statements, regarding or referencing the Lawsuit, the Complaint, the Amended Complaint, the Federal Action, the Trial or the Appeal.

The lawyer had previously published an article on his website discussing, inter alia, the facts of the case and alleged errors made by the Superior Court Judge who presided over the case:

At trial, the case was assigned to Judge Christine Farrington. Judge Farrington was recently appointed as a judge of the Superior Court and took the bench in June 2010. Prior to being appointed judge, Judge Farrington spent 10 years as deputy counsel for the Port Authority of New York and New Jersey and worked in claims administration, risk management and environmental matters.  During the trial, Judge Farrington made various prejudicial comments suggesting lack of impartiality, improperly excluding [sic] evidence and testimonies, etc., which are the subject of a pending appeal. Judge Farrington excluded various documents and testimonies, including documents and witnesses relating to the unemployment appeals hearing, documents and witnesses relating to Ms. Lazzaro [sic] termination and replacement, and other matters that are the subject of an appeal. The plaintiff’s position is that the jury’s verdict in favor of Rite Aid was the product of many errors of the trial judge, including various comments suggesting favoritism towards the position of Rite Aid. The plaintiff is confident that the appellate courts would [sic] grant a new trial based on these perceived errors.

The lawyer testified that although “in retrospect, he should not have made such statements about the judge and her rulings, respondent did not believe they were unethical. Still, he would not publish such an article again because he did not want to be the subject of another ethics investigation.”

The New Jersey Office of Attorney Ethics advised the lawyer to remove the article from his website because it allegedly contained client confidential information.  The lawyer removed the article from his website; however, it was still visible through a Google search.  The lawyer also argued that the information was public record and prohibiting him from publishing it would violate the First Amendment.

According to the Decision, “In respondent’s view, after the hyperlink had been removed from the law firm’s website, the article remained within the internet archives, but he did not know how to ‘get rid of that.'”  The Special Master found that the lawyer’s representations that he had removed the article constituted “gross negligence” since the article was still accessible on the internet, that the article violated the New Jersey lawyer advertising rules, and that the failure to remove the article was prejudicial to the administration of justice since the lawyer “failed to take reasonable and necessary steps to make sure the Kahn [sic] Article was completely removed from the Internet (especially after Respondent received the OAE’s April 8, 2013 letter), and that his failure to do so has unnecessarily consumed resources of the State.”

In the New Jersey Disciplinary Review Board Decision, four members recommended a reprimand, one member voted for an admonition, and another member voted to dismiss the disciplinary matter.  The majority found that the article violated client confidentiality and that the lawyer failed to preserve his website pages for 3 years under N.J. Bar Rule 7.2(b) (b) (A copy or recording of an advertisement or communication shall be kept for three years after its last dissemination along with a record of when and where it was used.”  The Decision acknowledged that there was no precedent for applying the requirement to website pages.

The New Jersey Supreme rejected the Disciplinary Review Board’s reprimand recommendation and dismissed the complaint.  The opinion found that “the respondent’s conduct in revealing information that was a matter of public record under the circumstances here did not violate (the client confidentiality rule)” and “there is a lack of precedent for applying RPC 7.2(b) to impose discipline on an attorney for failure to retain webpages of the attorney’s or a law firm’s website.”  The opinion also recommended that the New Jersey advisory committee on professional ethics consider amending the rules to require lawyers to retain their webpages for a minimum period of time.

Bottom line:  The factual and procedural circumstances underlying this opinion are convoluted; however, the lawyer argued that the article that he posted on his website contained public record and prohibiting him from publishing the information would be a violation First Amendment of the U.S. Constitution.  The opinion found that revealing information that is a matter of public record does not violate the New Jersey client confidentiality rules.

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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Filed under Attorney discipline, Attorney Ethics, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer advertising, lawyer confidentiality, Lawyer discipline, Lawyer dismissal of Bar complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing client confidential information on internet, Lawyer websites

Washington D.C. lawyer receives informal admonition for revealing client confidences in response to client’s negative website comments

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent informal admonishment of a Washington D.C. lawyer who responded to a client’s negative and critical comments and revealed confidential and specific information about her case, her emotional state, and confidential details about the attorney-client relationship.  The disciplinary case is In re John P. Mahoney, Bar Docket No. 2015-D141 and the ODC’s informal admonition letter is here: http://www.dcbar.org/discipline/informal_admonition/20150609Mahoney.pdf.

The D.C. Office of Disciplinary Counsel (ODC) sent the lawyer a letter dated June 9, 2016 stating that the his internet response to a client’s complaint violated D.C. Bar Rule 1.6 since it revealed attorney/client confidential information and there was no exception to the rule allowing the lawyer to reveal the confidences.  Further, the lawyer violated D.C. Bar Rule 8.4(c)  “when (he) posted a further response on the website concerning Disciplinary Counsel’s investigation of the client’s allegations and Disciplinary Counsel’s statements.”  According to the letter, the lawyer’s claim that he had been “cleared” of the charges in the complaint “was, at best, misleading…”.

The ODC letter states:

The client’s principal complaint was that your fees were excessive. She claimed that she had prepared most of the documents you submitted on her behalf and you billed her an inordinate number of hours to proof or edit the documents, but did not advise her that a concise account of the discrimination she suffered would suffice. She further alleged that the expenses you charged were unwarranted and unnecessary. The client also was critical of your representation of her during the mediation, including the settlement demand that you made on her behalf. She claimed that you were verbally abusive, leading to her terminating the relationship.

After the attorney-client relationship ended, the client posted comments about you on a website in which she was highly critical of you and the representation you provided. You responded to her comments and, in doing so, revealed specific information about her case, her emotional state, and what transpired during your attorney-client relationship – although you did not identify the client by name.

The letter found that there was no misconduct found in the lawyer’s underlying representation of the client.  Under the D.C. Bar rules, since the lawyer did not submit a written request for a hearing within 14 days of the ODC letter, the informal admonition constitutes final discipline.  The lawyer must also complete three hours of CLE related to a lawyer’s confidentiality obligations.

Bottom line:  This lawyer responded to what he believed were false allegations by a client on a public website and provided attorney/client confidential information in defending himself.  Unfortunately, responding  to internet allegations is not one of the exceptions to the Bar confidentiality rules (Rule 4-1.6 in Florida) which permits a lawyer to reveal client confidences.

As I have stated in my earlier blogs on this topic, in our digital/instant communication brave new world, it is much too easy to react quickly and badly to a  perceived slight, such as a bad client internet review.  Before responding to any internet postings, a lawyer must seriously consider the ethical implications and not act impulsively and reveal confidential information, which may result in a Bar investigation and potential sanctions.

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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Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer discipline social media misuse, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing client confidential information on internet, Lawyer sanctions, Lawyers and social media

Florida Bar’s Professional Ethics Committee concludes that a lawyer can forgive advanced costs after a negligence case is resolved

Hello everyone and welcome to this Ethics Alert blog which will discuss the Bar Professional Ethics Committee’s (PEC) Proposed Advisory Opinion 16-1, which concludes that a lawyer can forgive advanced costs at the conclusion of a negligence case when the lawyer also does not take a fee and inform lien holders and the lawyer advises third parties with an interest in the settlement.  The proposed advisory opinion is here:  Proposed Advisory Op. 16-1.

The PEC considered the issue at its June 17, 2016 meeting at the Bar’s Annual Convention in Orlando.  The underlying circumstances were as follows:  the lawyer had a contingency fee contract with the client and agreed to advance the costs of litigation.  After the case was filed, an appellate decision in another matter eliminated the cause of action.  The parties later reached a settlement, but the settlement amount only slightly exceeded the lawyer’s costs and was about 1/2 of the client’s total medical bills and the costs.

The lawyer waived the contingency fee and then asked the Bar ethics department if he could reduce the amount of the advanced costs so that the client could receive some of the settlement proceeds after the outstanding medical liens and other interests were resolved..  The Bar ethics department opined that this was prohibited under the Bar rules; however, a request was made for the PEC to review it.

The underlying circumstances potentially implicate Florida Bar Rule 4-1.8(e), which prohibits financial assistance to clients “in connection with pending or contemplated litigation” (except for an initial agreement to advance of litigation costs which is contingent upon the outcome (no recovery, no costs), or paying the costs and expenses of an indigent client).

The proposed advisory opinion states the lawyer’s forgiveness of the advanced costs is permitted under the Bar rules since the fee agreement did not make the lawyer unconditionally responsible for the costs “at the outset of the representation”, the cost forgiveness occurred after the settlement of the case, and the lawyer has waived the fees.  The advisory opinion concludes:

In summary, the committee is of the opinion that the inquirer’s proposal not to seek reimbursement for some of the costs the inquirer has advanced on behalf of the client is permissible under these specific circumstances: where there has been no agreement for the inquirer to be unconditionally responsible for the costs at the outset of representation, the cost “forgiveness” occurs after settlement, and the inquirer will receive no fees for the representation. The committee believes that the rule’s prohibition is inapplicable because there was no agreement at the outset of representation for the inquirer to be responsible for the costs, and the committee believes that application of the exception to Rule 4-1.8(e) leads to the same result, as the recovery is insufficient to cover all medical bills and litigation costs and the repayment of the costs is therefore “contingent on the outcome of the matter” under the rule.

The proposed opinion also states that “(i)n negotiating liens, the inquirer must disclose to lien holders that the inquirer will not be taking a fee, will not seek reimbursement for some of the inquirer’s costs, and is seeking to disburse some of the recovery to the client.”  The proposed advisory opinion was published on the Bar’s website and the PEC will consider any comments from Bar members when it meets in October 2016.

Bottom line:  This proposed advisory opinion is clearly a correct result based upon both the language and intent of Florida Bar Rule 4-1.8(e).  In my opinion, the forgiveness of advanced costs after a matter is settled should never be considered to be financial assistance “in connection with pending or contemplated litigation.”

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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Filed under Attorney Ethics, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer waiving costs and fees, Waiver of costs, waiver of costs financial assistance to client