Monthly Archives: May 2018

Florida lawyer disbarred for soliciting and having sex with 2 clients while they were incarcerated in jail

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion disbarring a lawyer who had solicited and sex with 2 clients in they were incarcerated in jail.  The case is The Florida Bar v. Blackburn, No. SC17-1514 and the opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc17-1514.pdf

The Florida Bar’s complaint alleged that the lawyer visited the 2 female clients in jail in Duval County on September 3, 2016.  He deposited money in one client’s bank account to pay for the sex and promised another client free or discounted legal services in exchange for sex.  The lawyer was arrested and pled no contest to a misdemeanor battery charge in the underlying criminal matter on May 25, 2017.

According to media reports, the lawyer showed the clients pornographic images before having sexual contact with them.  One of the clients said then made sexual advances towards her by touching her and forcing her to touch him.  Jail employees became suspicious when they noticed that the lights were out in the room. Criminal investigators also obtained a recorded telephone call that one of the clients made to her friend from the jail explaining what happened.

The Florida Bar and the lawyer entered into a consent agreement for an 18 month suspension with the conditions that the lawyer attend the Florida Bar’s Ethics School, contact Florida Lawyers Assistance, Inc. (FLA, Inc.) to schedule an evaluation and abide by all recommendations made by FLA, Inc., and pay the Bar’s costs of $1,688.51 before he could be reinstated.  The referee approved the agreement; however, the Court, in a unanimous opinion, disbarred the lawyer.  The lawyer had previously been suspended for 30 days in December 2014 for minor misconduct related to his handling of a child custody case.

The May 24, 2018 opinion states:

“Furthermore, the Court has moved toward imposing harsher sanctions, see Florida Bar v. Herman, 8 So. 3d 1100, 1108 (Fla. 2009), and has stated that it ‘will strictly enforce the rule against lawyers engaging in sexual conduct with a client that exploits the lawyer-client relationship.’ Fla. Bar v. Bryant, 813 So. 2d 38, 44 (Fla. 2002); see Fla. Bar v. Samaha, 557 So. 2d 1349, 1350 (Fla. 1990) (‘Even the slightest hint of sexual coercion or intimidation directed at a client must be avoided at all costs.’).

“In summary, evidenced by this Court’s case law, under no circumstances should an attorney representing a client expose that client to unwanted sexual relations of any kind. Respondent’s conduct, which exploited his clients’ circumstances for his own personal benefit, ‘breeds contempt and distrust of lawyers,’ ‘demonstrates severe moral turpitude,’ and such actions ‘are wholly inconsistent with approved professional standards.’ McHenry, 605 So. 2d at 461.”

Bottom line:  This lawyer engaged in highly improper and criminal conduct and consented to an 18 month suspension; however, the Florida Supreme Court disagreed with that agreement and imposed disbarment.

Be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, advice and representation of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers. 

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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Filed under Attorney discipline, Attorney Ethics, Florida Bar, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sex with client, Lawyer sex with client in jail, Lawyer soliciting sex with client in jail

California Supreme Court adopts new Bar ethics rules which (mostly) follow the ABA Model Rules of Professional Conduct

Hello everyone and welcome to this Ethics Alert, which will discuss the California Supreme Court’s recent Order implementing new Bar ethics rules which are substantially patterned after the ABA Model Rules of Professional Conduct.  The California Supreme Court Order approving 69 new rules (42 of which were modified by the Court) along with the Court’s comments is here: http://www.calbar.ca.gov/Portals/0/documents/Supreme%20Court%20Order%202018-05-09.pdf.

On May 10, 2018, the California Supreme Court issued an order adopting a new set of California Rules of Professional Conduct patterned after the American Bar Association’s Model Rules of Professional Conduct, which were first published by the ABA in 1983.  California will now join the other 49 states which have adopted ethics rules patterned after the ABA Model Rules.  California lawyers are also governed by the California Business Code. The new California Bar rules will take effect on November 1, 2018.

The new California Bar rules are not identical to the ABA Model Rules; however, and the new rules do not adopt Model Rule 1.14, which sets forth the obligations of lawyers who are representing clients with diminished capacity.  The new Bar rules implement streamlined advertising rules which substantially track the rules proposed by the Association of Professional Responsibility Lawyers (APRL).

A table comparing the new California Bar rules with the ABA model rules which was prepared by the California Bar is here: http://www.calbar.ca.gov/Portals/0/documents/ethics/2D_RRC/2017_CrossReferenceChart%20RulesByNumbering-v.2-031717.pdf

According to media reports, there is also back story related to the substantial efforts to align the California Bar rules with the ABA model rules (as well as the rest of the country).  An article published by the ABA/BNA Lawyers’ Manual on Professional Conduct in April 2017 outlines the history of “California’s multiyear initiative to update its standards governing lawyer conduct” to align with the ABA Model Rules templates.  That article is here:  https://www.bna.com/fate-california-rule-n57982086261/

Bottom line:  After a long effort by California lawyers, the state has now joined the 49 other states (including Florida in 1990), which have adopted versions of the ABA Model Rules of Professional Responsibility.

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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Florida Bar’s Board of Governors considers rule revisions prohibiting misleading Google ad words and permitting credit charges to clients

Hello everyone and welcome to this Ethics Alert, which will discuss the Board of Governor’s review of potential revisions to Florida Bar Rules 4-7.13, which would prohibit misleading words and phrases in Google ad words, and revisions to Florida Bar Rule 4-1.5(h), which would permit lawyers to charge a client the actual cost of accepting a credit payment.

The Bar Board of Governor’s backup materials regarding proposed revised Bar Rule 4-1.5(h) indicate that the basis for the proposed rule change is a potential allegation of an improper restraint of trade in violation of the Sherman Antitrust Act.

The Bar’s recent summaries of the proposed rule revisions and their status in the BOG review process are below.

PROPOSED ADVERTISING RULE CHANGES 

The Board Review Committee on Professional Ethics will be considering a request for a rule amendment (to Rule 4-7.13) that would state it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the Internet or other media, including directly or through a group advertising program. For example, the proposal would ban the purchase of another lawyer’s name in Google ad words. The Board’s Citizens Advisory Committee also supports the amendment, stating that the practice is misleading, particularly to vulnerable consumers. 

FINAL ACTION ON CREDIT SERVICE CHARGES 

The Board will be taking final action on a proposed rule change that would delete the current prohibition against charging a service charge for client’s use of a credit plan and allow lawyers to charge the actual charge imposed on the lawyer by the credit plan. Rule 4-1.5(h) currently permits lawyers to accept credit cards to pay for fees and costs, but prohibits lawyers from charging the client the credit card fee charged to the lawyer as a vendor.

Bottom line:  Proposed revised Rule 4-7.13, which would prohibit misleading Google ad words, would be consistent with other jurisdictions that have considered the issue.  Proposed revised Rule 4-1.5(h), which would permit a lawyer to require the client to pay the actual credit card charges would reverse the prior rule, which specifically prohibited requiring the client to pay such merchant charges.

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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Florida Supreme Court suspends two lawyers for conflict of interest Bar Rule violations under “hot potato doctrine”

Hello everyone and welcome to this Ethics Alert, which will discuss recent opinion of the Supreme Court of Florida suspending two Florida lawyers for 30 days for violating Bar Rules related to conflicts of interest under what is being called the “hot potato” doctrine. The cases are: The Florida Bar v. Steven Kent Hunter, Case No.: SC16-1006, TFB No. 2014-70,728(11C) and The Florida Bar v. Philip Maurice Gerson, Case No.: SC16-1009, TFB No. 2014-70,729(11C).  The April 11, 2018 Supreme Court opinion is here:  https://efactssc-public.flcourts.org/casedocuments/2016/1006/2016-1006_disposition_141625_d31a.pdf

The Florida Supreme Court opinion suspended the two lawyers for 30 days each for seeking payments for their clients from a scientific institute created in a class action tobacco settlement notwithstanding objections from their previous clients.  The opinion found that the lawyers violated Florida Bar Rules 4-1.7 (conflict of interest – current clients), and 4-1.9 (conflict of interest – former clients) by seeking relief adverse to the clients’ interests.  The case involved the so called “hot potato doctrine”, which was established in a March 27, 2014 Florida Supreme Court opinion involving the same lawyers.

The 2014 Supreme Court opinion quashed a Third District Court of Appeals opinion reversing a trial court order disqualifying the lawyers on the same underlying facts as the 2018 Bar case.  That opinion stated:  “Additionally, with this opinion, we ask The Florida Bar to investigate whether any Florida Rules of Professional Conduct were violated during the underlying proceedings or during the presentation of this case to this Court.  The case is Patricia Young et al. vs. Norva Achenbauch, et al., Case No. SC12-988, and the March 27, 2014 opinion is here:  http://www.floridasupremecourt.org/decisions/2014/sc12-988.pdf

In Young, the Court said that a lawyer who has a conflict of interest between two current clients cannot avoid the current-client conflict rule (4-1.7) by dropping one client “like a hot potato.”  Before that opinion, it was argued that a client who a lawyer dropped because of a conflict of interest became a former client under Bar Rule 4-1.9, which is potentially less restrictive.

The underlying litigation began with a putative class-action lawsuit filed by a different lawyer on behalf of a number of flight attendants alleging damages for second hand smoke inhalation. That case settled with no compensation to class members; however, the settlement provided that $300 million would be paid to create a foundation sponsoring scientific research on cigarette smoking.  The settlement also allowed individual suits for compensatory damages by class members, as long as those claims were not based on alleged fraud and misrepresentation.  The lawyers were among the lawyers who took on individual suits by flight attendants.

The referee found in his report that the lawyers (and the other lawyers) were “wholly unsuccessful” in the individual cases, partly because class members could not prove causation.  The referee also found that, after the unsuccessful lawsuit, the lawyers then turned to “Plan B”, which was to negotiate payments to class members from the foundation. Two of Gerson’s former clients sent letters to the foundation stating they objected to any plan to undercut the foundation’s activities and funding.  Hunter, the other lawyer, received an objection from a foundation board member who he had previously represented in one of individual lawsuits, and who was being paid $60,000 annually to serve on the foundation board.

According to the referee’s report, Gerson believed the letters were solicited to stop the petition to approve a distribution from the foundation. Gerson and Hunter then withdrew from representing anyone who had voiced an objection, and filed a petition alleging that the institute had substantially deviated from its approved purpose and had misused settlement funds.

The institute and the objectors then filed a petition to disqualify the lawyers because of a conflict of interest and the disqualification issue was addressed in the Florida Supreme Court’s 2014 opinion, which created the so called “hot potato” doctrine.  The referee found that the 2014 opinion was binding in the ethics case; however, the referee recommended only an admonishment, finding that neither lawyer had any prior disciplinary record, the case involved legal issues that were unsettled before the 2014 Supreme Court decision, and the issue of whether the petition sought relief adverse to class members was “fairly debatable.”

The Florida Supreme Court opinion approved the referee’s findings of fact and the recommendation that the lawyers be found guilty of violating Florida Bar Rule 4-1.7; however, the opinion rejected the recommendation that the lawyers be found not guilty of violating Bar Rule 4-1.9, and found both lawyers guilty of violating that rule. The opinion also disapproved the referee’s recommendation of an admonishment and suspended both lawyers for 30 days.

Bottom line:  This is an unusual case where the Florida Supreme Court issued an opinion in an underlying case and sent the case to The Florida Bar for investigation.  The opinion relied on the court’s previous finding in the civil case and suspended the lawyers, even though the referee found the conflict to be “fairly debatable”.

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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Federal magistrate sanctions New York lawyer for lying about family emergency after Instagram posts showed she was on vacation

Hello everyone and welcome to this Ethics Alert, which will discuss recent opinion of a U.S. District Court magistrate sanctioning a New York lawyer who claimed that she missed a deadline because of a family emergency but was apparently on vacation.  The case is: Siu Ching Ha v. Baumgart Café of Livingston, Civil Action No. 15-5530 (ES) (MAH), and the magistrate’s opinion is here:  Ha v. Baumgart Café of Livingston Instagram sanctions

The lawyer, Lina Franco, and her co-counsel, John Troy, filed for an extension of time to file 16 days past the deadline to file a motion for conditional class certification.  The lawyer said she had to leave the country for the family emergency and submitted a flight itinerary showing she had flown from New York City to Mexico City on Thursday, November 21, 2016 and stayed there until December 8, 2016.

Opposing counsel filed a motion objecting to the extension and for sanctions claiming that Instagram photos from Franco’s public social media account indicated that she was in New York and then Miami during that period.  Franco told the magistrate that she had gone to Mexico City earlier in November and that her mother’s medical diagnosis sent her “into a tailspin” that caused her to miss the deadline and submit an erroneous itinerary.

The magistrate found that “November 21, 2016 was indisputably a Monday, not a Thursday” and, although Franco was in Mexico City in early November 2016, she was apparently in New York City when she missed the Nov. 23, 2016 deadline to file a motion for class certification in a wage-and-hour suit.  The magistrate found that Franco deliberately had misled the court and her co-counsel and that her “misrepresentations to the court clearly constitute bad faith and were unreasonable and vexatious, not simply a misunderstanding or well-intentioned zeal.”   The magistrate granted the motion and imposed sanctions against Franco in the amount of $10,000.00.

Franco was local counsel in the lawsuit and her co-counsel, Troy, was admitted into the case pro hac vice. Troy told the magistrate that he had e-mailed the motion to Franco on the afternoon of the deadline and had expected her to file it and he was unaware of her alleged family emergency. He said he did not follow up with Franco to make sure the motion was filed because he had worked with her in the past and believed that she was reliable.

Both Franco and opposing counsel sought to have Troy held jointly and severally responsible for the sanction; however, the magistrate did not agree, stating that “(e)ven assuming, solely for the sake of argument, that Mr. Troy had a duty to supervise Ms. Franco and was somehow derelict in discharging that duty, such dereliction falls well short of the standard to impose sanctions”.  Opposing counsel requested $44,283.00 in attorney fees and costs; however, the magistrate found that amount to be “unreasonably high” and ordered sanctions in the amount of $10,000.00 to be divided among the three opposing counsel.

Bottom line:  This is a very clear example of a lawyer whose false statements in court documents and in a court proceeding were exposed because of social media posts, in this case Instagram.

Be careful out there in our digital social media world…oh and don’t lie and post pictures on social media exposing the lie.

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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Filed under Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer misrepresentation, Lawyer sanctions false statements and Instagram photos, Lawyer sanctions for lying and posting on social media, Lawyer sanctions lying in court document

Indiana ethics opinion finds that AVVO Advisor services may violate referral, fee splitting, and advertising rules

Hello everyone and welcome to this Ethics Alert which will discuss recent (April 2018) Indiana Ethics Opinion 1-18 which found that AVVO’s client referral services may violate Indiana Bar rules related to fee sharing with a non-lawyer, improper referral fees to a non-lawyer entity, potentially misleading communications, and the lawyer’s obligations related to professional independence and disclosure of limited representation. The Indiana ethics opinion is here:  https://www.in.gov/judiciary/discipline/files/dc-opn-1-18.pdf

The ethics opinion describes and summarizes the AVVO Advisor program (and any other similar online non-lawyer legal referral services) business model as follows:

Technology and increasing competition in the legal profession and business in general have driven the expansion of a variety of online legal services. Significant growth has been apparent among online service providers offering consumers fixed-fee, limited scope services provided by local attorneys. Typical business models set a fixed fee for various legal services with a local attorney performing the actual legal work. The company, not the attorney, defines the types of legal services offered, the scope of the representation, the fees charged, and other parameters of the legal representation.

Common features of these arrangements include: 1) prearranged fees established by the online company; 2) a “marketing fee” received by the online company; 3) addition of a local attorney to a database accessible to and used by the prospective client to select the attorney; and 4) a caution from the online company that an attorney may decline representation, but that repeated refusals could result in the removal of the attorney’s name from the database.

According to the AVVO webpage, “Avvo Legal Services is currently available in these US states: Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Nevada, New Hampshire, North Carolina, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Utah, Virginia, Washington, and Wisconsin.” The listed practice areas include:  “Bankruptcy and debt, Business, Criminal defense, Divorce and separation, Family, Estate planning, Immigration, Landlord or tenant, Real estate” and states “If you need to update your practice area percentages, simply edit your Avvo profile.”

Under the AVVO Advisor business model, the potential client visits the AVVO website, selects the legal services needed, and pays Avvo a fixed fee.  Avvo then arranges for an “experienced lawyer” to return the prospective client’s call “within minutes.”  If a lawyer decides to participate, he or she agrees to provide certain legal services for a fixed fee.  Examples include a $39.00 flat fee for a “15-minute Family advice session”; a $995.00 flat fee for filing of an “uncontested divorce”; and a $295.00 flat fee for creating a “last will and testament”.

After the lawyer provides the legal services, Avvo sends the lawyer “100% of the client’s payment” and the lawyer sends to AVVO,  “(as) a completely separate transaction”, a “per-service marketing fee.”  According to AVVO’s “Attorney FAQ for Avvo Legal Services”, “Prices for these (legal) services vary from $295 for services like creating a last will and testament (individual), up to $2995 for preparing and filing a family green card application. Any applicable filing fees are not included in the price of the service; clients should pay those separately”.

“You (the lawyer) pay a marketing fee. As a separate transaction, we withdraw a per-service marketing fee from your withdrawals account. Fees are $40 – $400, depending on the service.”  The Attorney FAQs also state that “Attorneys in Florida who offer 15-minute advice sessions must carry at least $100,000 in legal malpractice insurance. This requirement does not currently apply to document review or start-to-finish services.”

Bottom line:  Indiana has now joined a lengthening list of jurisdictions which have published ethics opinions stating that the “AVVO Advisor” business model may violate lawyer ethics rules, including, in this opinion, the Indiana Bar rules related to fee sharing with a non-lawyer, payment of referral fees to a non-lawyer entity, potential misleading communications, and the lawyer’s obligations related to professional independence and disclosure of limited representation.  Other jurisdictions may publish ethics opinions in the future.  Stay tuned…

…and be very 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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