Monthly Archives: October 2017

Federal prosecutor suspended after lying about intimate relationship with FBI agent who testified in her cases

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary opinion which imposed a one year and one day suspension with 6 months deferred on a federal prosecutor for having an intimate relationship with an FBI agent who was an investigator and witness in her cases and lying about it.  The disciplinary case is In Re: C. Mignonne Griffing, Case No. 2017-B-0874 and the October 18, 2017 disciplinary opinion is here: file:///C:/Users/jcorsmeier/Downloads/17B0874.OPN.pdf

The relationship was revealed during the trial of two Monroe, Louisiana city councilmen and the Ouachita Parish sheriff. “After the sheriff’s counsel raised the possibility of the relationship, (the lawyer) was questioned by the United States Attorney and was not immediately and fully forthcoming.”

The lawyer initially denied the relationship with the (married) FBI agent at that time but it was later confirmed.  The disciplinary opinion adopted the findings of the disciplinary board that the misconduct “led to the government’s decision to relitigate the case against Councilmen Stevens and Gilmore, caused harm in the form of the additional expenditure of resources to retry the case, and adversely impacted the government’s tendered plea bargain offered to Sheriff Toney. The potential for harm also exists, as it is possible that the issue of the relationship may be raised in other cases prosecuted by respondent in which the FBI agent testified. Furthermore, her actions are the type that cause unfavorable opinion by the public towards the legal system and especially, the United States Attorney’s Office in the Western District of Louisiana.”

The lawyer denied that the relationship created a conflict of interest and defended the formal.  She was ultimately found guilty of multiple violations of the Louisiana Bar Rules, including conflict of interest and making false statements in denying the conduct.

According to the opinion, “(b)ecause the relationship with the FBI agent could reasonably give rise to a basis for questioning the interest and/or credibility of the witness by the defense, the existence of the relationship should have been disclosed to the defendants, but (the lawyer) failed to do so.”  “In addition, the disciplinary board found (the lawyer) made assurances to the sheriff’s counsel relative to his client’s indictment and arrest. This conduct, and her phone call threatening the sheriff’s public arrest, were clearly improper.” “(The lawyer’s) actions are the type that cause unfavorable opinion by the public towards the legal system and especially, the United States Attorney’s Office in the Western District of Louisiana.”

The opinion increased the deferred six-month suspension recommended by the disciplinary board.  “When taken cumulatively, including the multiple violations of the Rules of Professional Conduct and specifically considering respondent’s dishonesty and misrepresentation to which she has stipulated, we find that the fully deferred suspension recommended by the board is not appropriate and that respondent must serve an actual period of suspension. We will impose a one year and one day suspension, deferring all but six months of the suspension in light of the substantial mitigating circumstances present.”  The lawyer also served a 19 day suspension from her job as a prosecutor without pay for the misconduct.

Bottom line:  This lawyer was found to have engaged in a relationship with a law enforcement agent who was an investigator and witness in many of the cases that she was prosecuting for the U.S. Attorney’s Office and failed to disclose it (for obvious reasons).  The lawyer paid the price for this misconduct with a suspension of her license and a serious hit to her reputation.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

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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Law firm requests Florida Supreme Court to invoke discretionary jurisdiction challenging judge’s finding that Facebook “friendship” with lawyer is not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (10/17/17) Notice that was filed with the Florida Third District Court of Appeal (and docketed with the Florida Supreme Court) seeking to invoke the discretionary jurisdiction of Florida Supreme Court and challenging the appeals court decision which declined to disqualify a Miami-Dade County Circuit Judge who was “friends” with opposing counsel on Facebook.  The 3rd DCA case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 3D17-1421, Lower Tribunal No.: 2015-015825-CA-43 (Florida 3rd DCA) and the Supreme Court case number is SC17-1848.  The Notice and 3rd DCA opinion are here:  https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_notice_82684_e81d.pdf and the SC docket with the filing is here: http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2017&p_casenumber=1848

As I previously blogged on 8/4/17 and 8/24/17, the 3rd DCA upheld the decision of Miami-Dade Circuit Judge Beatrice Butchko that she was not required to recuse herself from a case in which she was a Facebook” friend” of the lawyer for one of the parties.  The lawyer was also a former judge with whom she worked before he stepped down as a judge.  This decision diverges from a 4th DCA opinion as well as an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).  The 3rd DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

The Herssein law firm then moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which Reyes represents a non-party USAA employee in the matter, who was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009).  That opinion states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The 3rd DCA opinion states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

The Herssein law firm has filed a Notice with the 3rd DCA (which was received and docketed with the Florida Supreme Court on 10/17/17) asking the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv). In support of the request, the Notice states:  “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”

Bottom line:  As I said in my previous blogs, the 3rd DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and acknowledges that it is in conflict with that opinion; however, it does provide the rationale that each case should be decided  by examining the facts and the relationship.  This would seem to open up potential confusion and potential disqualification motions that would have to be decided on a case by case basis.  This Notice seeks to have the Florida Supreme Court invoke its discretionary jurisdiction review and reverse the 3rd DCA’s decision.

It is still strongly recommended that judges and lawyers who may appear before them would be well advised not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection, disclose it to all parties, and (the judge may) possibly provide an option to recuse if the party believes that it could be potentially prejudiced.

Stay tuned…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

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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Proposed Florida Bar rule initiated by Florida lawyer would make court finding of frivolousness “conclusive determination” of rule violation

Hello everyone and welcome to this Ethics Alert which will discuss the Petition initiated by a Florida lawyer to amend the Bar rules and provide that a court determination that an action violates F.S. §57.105, Florida appellate Rule 9.410, or Rule 11, Federal Rules of Civil Procedure “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  The Florida Bar published a Notice in the Florida Bar News that the petition will be filed on November 6, 2017 and members may comment on the Petition after it is filed.  The Bar Notice is here: 10-1-17 Bar News Notice of Filing Petition to Amend Rule.

The proposed rule revision would amend Florida Bar Rule 3-4.3 (misconduct or minor misconduct), by adding a section on frivolous actions which would provide if any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  Upon being notified of the finding, The Florida Bar would open a file, which would be sent to the grievance committee for review.

The proposed rule also provides that, unless there are aggravating circumstances, the referee or grievance committee considering the complaint can resolve the matter with an admonishment or referral of the lawyer to the Bar’s diversion program (lawyers would be eligible for diversion once every five years under the proposed rule).

The proposed rule would also require a lawyer who has had an appellate ruling that the a lawyer has violated the rules or state law on frivolous actions to notify the Bar within 10 days with copies to opposing counsel. Bar counsel would then docket the case “and The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”

The proposal would also amend the comment to Rule 4-3.1 to refer to the amendment to Rule 3-4.3. The comment to Rule 3-4.3 also provides that, “A lawyer shall not use any funds held in his trust account for payment of any personal obligation imposed upon the lawyer or the lawyer’s law firm as to sanctions pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule.”

The Florida Bar Rules allow members to directly propose amendments to Bar rules if the there is a petition filed with the Supreme Court signed by 50 Bar members.  This petition was signed by 55 Bar members.  The Board of Governors’ Disciplinary Procedure Committee (DPC) will review the proposed petition and rule amendments and will have a special meeting to discuss it.  A report by the DPC on the petition is expected at the Dec. 8, 2017 BOG meeting.

Bottom line:  This is rare member initiated petition to amend the Florida Bar Rules.  The amendment certainly appears to be well intended; however, since an order finding that a claim or defense is frivolous does not involve a criminal conviction, I am very concerned that the proposed rule that would make an order finding a frivolous filing by an appellate court on a civil matter “a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  I believe (and continue to believe) that a lawyer should be able to challenge such a court order since, among other things, the action and parties are different and the evidentiary requirements underlying such an order are not necessarily the same as those required for the Bar to prove a violation of the Bar rules.  In addition, the courts have inherent authority to sanction lawyers for frivolous filings as well as under the relevant statutes and court rules.

According to the Bar’s October 1, 2017 Notice in the Florida Bar News:

“Members who desire to comment on this proposed amendment may do so within 30 days of the filing of the above-referenced petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar and Thomas O. Wells, Esq. Rule 1-12.1 and Rule 3-7.15 of the Rules Regulating The Florida Bar govern these proceedings.”

Stay tuned…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Louisiana lawyer suspended for submitting false billable hours because he believed his partnership status required them

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court Opinion suspending a lawyer for 30 months with all but one (1) year deferred for false billable hours that he believed were necessary to maintain his partnership position and “in an effort to make himself look better on paper each month.”   The disciplinary case is:  In re: Kenneth Todd Wallace, Case No. 2017-B-0525.  The disciplinary opinion is dated September 22, 2017 and is here:  http://www.lasc.org/opinions/2017/17B0525.OPN.pdf

According to the opinion, the lawyer “joined the law firm of Liskow & Lewis as an associate attorney in 1998. After his promotion to shareholder in 2005, he served as the firm’s hiring partner and head of recruiting. He also chaired the firm’s diversity committee as the firm’s first minority recruiting and retention partner. In 2012, respondent was elected to the firm’s board of directors and served as the board’s junior director through April 2015.”

The lawyer stated that he made the false billing entries because he was concerned that his correct billable hours (along with an insufficient number of clients) were not adequate for a partner with his status.  “When his practice began to decline, (the lawyer) gave in to his own internal pressures and began to submit false time on a dismissed contingency fee matter, and eventually other matters, in an effort to make himself look better on paper each month.”

After the law firm became aware of his false billing in some client matters, the lawyer assisted the firm in conducting a full investigation.  The firm’s investigation showed that, between 2012 through 2015, the lawyer submitted 428 billing entries that the firm believed were “certainly false” and another 220 entries that the firm believed could be false or inflated; however, the law firm concluded that none of the false billing entries adversely affected any of the firm’s clients.

The lawyer had received $85,000.00 in merit bonuses between 2012 through 2015 and the firm concluded he would have received some or all of the bonuses even if he had not inflated his billable hours. The lawyer had also spent significant time with his firm management and committee responsibilities and had also met or exceeded billable targets during the years in question.  The lawyer resigned from the firm in 2015 and gave up his available bonus.

The disciplinary opinion imposed a 30 month suspension with all but one-year deferred.  The suspension was also made retroactive to January 2016, when the lawyer had been suspended on an interim basis pending the outcome of the matter.

Bottom line:  This is a very clear and unfortunate example of a lawyer who most likely destroyed his legal career after succumbing to the stress and pressure of a law partner’s need for large billable hours and a large number of clients (book of business).  I would imagine that, if asked, this lawyer would tell you that it was not worth it.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, fraud, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline false client billings, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer sanctions, Lawyers false billings discipline