Monthly Archives: August 2018

Florida Bar’s RJA committee proposes amendments to RJA Rule 2.505 clarifying requirements for substitute attorneys

Hello everyone and welcome to this Ethics Alert which will discuss the recent draft amendments to the Florida Rules of Judicial Administration which would clarify the requirements for substitute attorneys in litigation matters.

According to an article in the July 15, 2018 Florida Bar News, the Florida Bar’s Rules of Judicial Administration Committee has drafted revised rules to address requirements for substitute attorneys who appear at hearings when the attorney of record has a scheduling conflict.

At its meeting at the Florida Bar’s annual meeting in June 2018, the Bar’s RJA Committee considered a proposed amendment to Rule 2.505, clarifying which attorneys are authorized to represent a party and require substitute lawyers (“stand-in” attorneys under the proposed rule), to file a notice of appearance unless they are from the same firm, company, or agency as the attorney of record in the case.  The committee did not require a first reading and the proposed rule amendments will be placed on the agenda for final committee approval at the Bar’s Fall Meeting in Tampa on October 19, 2018.

Substitute or covering (or “stand in”) attorneys are not currently mentioned in RJA Rule 2.505, which, inter alia, addresses how attorneys enter and leave cases.  The use of substitute or covering (“stand-in”) lawyers has developed outside of the rules and with minimal authority.  Cases from the various district courts of appeal have found that a document filed by a substitute attorney is a nullity or was subject to challenge.

The proposed rule amendment states that an attorney appears for a party by signing the first pleading or the first document a filed in a case, by filing a notice of appearance, being named as the succeeding attorney in a substitution order, filing a notice of substitution, or filing a notice of limited appearance.  Current Rule 2.505 does not address coverage counsel or limited appearances.

The Bar’s Vision 2016 commission recommended rule revisions in cases in which a self-represented party hires an attorney to help in specific, limited issues, or circumstances.  The RJA committee then submitted a more extensive amendment to Rule 2.505, which addressed how attorneys enter and leave a case, and limited appearances of attorneys.

The Florida Supreme Court rejected that proposed amendment in 2017 and stated:  “While the attempt to develop one body of comprehensive rules that classifies different types of representation and governs how attorneys appear and terminate an appearance in a case is laudable, we believe more refined rules that address these matters for each of the various practice areas should be considered; and there should be more active involvement of and communication between all the affected rules committees before new proposals are finalized.” The September 7, 2017 Florida Supreme Court opinion is here: http://www.floridasupremecourt.org/decisions/2017/sc16-1062.pdf

Bottom line:  This issue has been around and debated for a number of years and many lawyers are not even aware of it and follow local custom when there is a need for a covering attorney.  The proposed rule revisions are an attempt to create uniformity with regard to substitute/covering attorneys.

Be careful out there.

Disclaimer:  this Ethics Alert 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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Filed under 2018 proposed Florida RJA 2.505 covering substitute stand in counsel, 2018 proposed RJA rules lawyers as stand in substitute coverage counsel, Attorney Ethics, Florida Bar, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer stand in substitute counsel

First Limited Licensed Paralegal Practitioners expected to be licensed to practice limited law in Utah in 2019

Hello everyone and welcome to this Ethics Alert which will discuss the implementation of the limited license practitioners (LLP) program in Utah, which is the second such program in the United States.  The first non-lawyer licensing program was Washington’s Limited Licensed Legal Technician (LLLT) Program, which has been in place since 2015.

In 2015, the Utah Supreme Court considered a proposal to permit limited licensed paralegal practitioners (LPPs) to provide legal advice and assist clients in limited matters; however, those paralegals would not be permitted to appear in court.  The new LPPs would assist clients in completing legal forms, completing settlement agreements and representing them in mediated negotiations.

The Utah Supreme Court Task Force to Examine Limited Legal Licensing was appointed to consider rules permitting non-lawyers to provide help in specified areas of family law, eviction and debt collection.  The task force’s report recommended that LPPs have a law degree or an associate’s degree with a paralegal certificate, paralegal certification, paralegal experience and additional coursework in their practice area. The Utah State Bar would supervise the licensing and discipline.

The Utah Supreme Court Task Force’s November 18, 2015 Report and Recommendation is here: http://www.utcourts.gov/committees/limited_legal/Supreme%20Court%20Task%20Force%20to%20Examine%20Limited%20Legal%20Licensing.pdf.

The new LLP Rules were approved by the Utah Supreme Court and will take effect November 1, 2018.  The first LLPs in Utah are expected to be licensed in 2019, which will make it the second state to license non-lawyers to practice law and will allow LLPs practice without a lawyer’s supervision in three areas.

Those legal areas include:  matters involving temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change, matters involving forcible entry and detainer, and debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.  LLPs will not be permitted to appear in court on behalf of a client.

LPPs will be permitted to help clients choose, complete, file, and complete service of legal forms; review and explain court orders or another party’s documents; advocate for a client in a mediation; and complete settlement agreements after a negotiation.  Classes for licensed paralegal practitioners will be taught at Utah Valley University and the first licensing examinations are expected to be held in Spring 2019.

Bottom line:  Utah is the second state to permit limited licensed legal practice in the United States.  Washington has had a Limited Licensed Legal Technician (LLLT) Program in place since 2015 and California and Oregon are thinking about it:  See:  http://www.calbar.ca.gov/About-Us/Who-We-Are/Board-of-Trustees/Board-Task-Force/Limited-License-Working-Group and http://bog11.homestead.com/LegalTechTF/Jan2015/Report_22Jan2015.pdf

Be careful out there.

Disclaimer:  this Ethics Alert 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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Filed under 2018 Utah rules permitting non-lawyer legal practice, joe corsmeier, Joseph Corsmeier, Non lawyer compensation, Non-lawyer limited practice of law, Non-lawyer practicing law

Ohio lawyer suspended for engaging in “extreme, obnoxious, and humiliating attacks” on firm paralegal for over 2 years

Hello everyone and welcome to this Ethics Alert which will discuss the recent Ohio Supreme Court opinion suspending a lawyer for 1 year with the final 6 months deferred for “extreme, obnoxious, and humiliating attacks” on a paralegal for over 2 years. The case is Disciplinary Counsel v. Skolnick, No. 2018-OHIO-2990 (Aug 1, 2018).  The opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-2990.pdf.

The opinion described the lawyer’s conduct as follows: “During (the paralegal’s) two-and a-half year tenure, Skolnick berated her for her physical appearance, dress, education, and parenting skills. He called her a bitch, a ‘hoe’, a dirtbag, and a piece of shit, and he told her that he hoped she would die. And because (the paralegal) recorded her interactions with Skolnick on more than 30 occasions, we have had the opportunity to hear Skolnick’s outbursts for ourselves.”

“In addition, the lawyer ‘called (the paralegal)  stupid, dumb, fat, ‘whorey,’ and bitch.’ Further, he remarked that she should give him ‘road head’ during a drive and falsely told an African American client that the paralegal “did not like black people.”

“The only explanation that Skolnick offered for his extreme, obnoxious, and humiliating attacks on L.D. was that he had learned the lingo from rappers and hip-hop artists while practicing entertainment law and that he believed he was using the phrases in more of a humorous than a harmful way.”  In addition, “(a)lthough (the lawyer) presented some evidence that he had been diagnosed with and was being treated for cyclothymic disorder and exhibited traits of obsessive-compulsive personality disorder, the board declined to afford mitigating effect to those conditions because Skolnick did not present any evidence that they were causally related to his misconduct.”

The opinion found that the lawyer violated Ohio Rule of Professional Conduct 8.4(h), prohibiting a lawyer from “engaging in conduct that adversely reflects on the lawyer’s fitness to practice law” and suspended the lawyer for one (1) year with the final 6 months deferred.

Bottom line: this lawyer engaged in extreme, obnoxious, and humiliating attacks” on his paralegal.  The lawyer tried to minimize and justify his conduct by claiming that he learned the “lingo” from “rappers and hip-hop artists” and was being treated for psychiatric disorders.  The court imposed a 1 year suspension with the final 6 months deferred.

Be careful out there.

Disclaimer:  this Ethics Alert 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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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer abuse of nonlawyer paralegal, Lawyer derogatory remarks, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer suspension for attacks on paralegal, Lawyer threats and discipline, violation of Bar rule 8.4(h) prohibiting a lawyer from “engaging in conduct that adversely reflects on the lawyer’s fitness to practice law”

Florida Bar Professional Ethics Committee approves staff opinion addressing lawyer responses to negative online reviews

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar’s Professional Ethics Committee’s recent approval of Florida Bar Staff Opinion 38049, which addresses lawyer responses to negative online reviews.

On June 15, 2018, the Florida Bar’s Professional Ethics Committee unanimously approved Florida Bar Staff Opinion 38049 which states that a lawyer may post a limited response to a negative online review that the lawyer says falsely accuses her of theft; however, the lawyer may not reveal attorney/client confidences.  The Staff Opinion is here:  file:///C:/Users/jcorsmeier/Downloads/PRR_Corsmeier_-_38049_KNS_responding_to_negative_online_review_PEC_approved.pdf.  The Professional Ethics Committee will not issue a separate opinion.

The lawyer stated in her inquiry that she received a negative online review and would like to respond to the former client’s negative review that the lawyer “took her money and ran” by using the language suggested in Texas Ethics Opinion 662 and adding an “objectively verifiable truthful statement” that the Court entered an order authorizing the lawyer to withdraw as counsel for the former client.

The lawyer stated that she believed the added language was “proportional and restrained, consistent with the Texas Ethics Opinion, directly addressed the allegations of the former client, and should be permissible under the Rules Regulating the Florida Bar and the First Amendment.”  The staff opinion found that the post would reveal confidential information without obtaining the former client’s consent and cited the comment to Florida Bar Rule 4-1.6.

According to the staff opinion, “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

“The inquirer refers to Texas Ethics Opinion 622. That opinion explains that a lawyer may not respond to client’s negative internet review if the response discloses confidential information.  The opinion gives an example of a proportional and restrained response that does not reveal any confidential information:  A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.  The suggested language found in Texas Ethics Opinion 622 would be an acceptable response for the inquirer.”

“An attorney is not ethically barred from responding to an online review by a former client where the former client’s matter has concluded…(h)owever, the duty of confidentiality prevents the attorney from disclosing confidential information about the prior representation absent the client’s informed consent or waiver of confidentiality.”

In 2016, a Colorado lawyer was suspended for six months after he responded to a negative online review and revealed, among other things, that the client had bounced a check and committed unrelated felonies.  There have been other disciplinary cases where a lawyer has been sanctioned for revealing confidences in responding to a negative online review, including: In the Matter of Margrett A. Skinner, Case No. S14Y0661 (Ga. Supreme Court 5/19/14), where a Georgia lawyer received a reprimand for revealing confidences in responding to a negative online review, and In re John P. Mahoney, Bar Docket No. 2015-D141 (2015), where a lawyer received in formal admonishment in 2015.

Bottom line:  As I have blogged and advised in the past, lawyers are prohibited from revealing client confidences unless an exception to the Bar rules applies either requiring or permitting the disclosure.  Permissive exceptions include responding to a Bar complaint, defending a lawsuit filed against the lawyer, and defending against criminal charges involving the representation of a client.  A negative online review is not currently one of those exceptions.

Be careful out there.

Disclaimer:  this Ethics Alert 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

 

 

Leave a comment

Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Florida Bar, Florida Bar ethics opinion responding to negative online review, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics responding to negative online review complaint confidentiality, Lawyer revealing client confidential information on internet, Lawyer social media ethics, Lawyers and social media