Monthly Archives: October 2018

Florida lawyer suspended for hijacking former firm’s e-mail accounts and making disparaging comments on Facebook

Hello everyone and welcome to this Ethics Alert which will discuss recent Florida Supreme Court Order suspending a lawyer for, inter alia, hijacking his former firm’s e-mail accounts and making disparaging comments on Facebook.  The Supreme Court Order is here:  9/20/18 Florida Supreme Court Order-Paul Green

According to the report of referee, which is here:  8/20/18 Green Report of Referee, the lawyer was alleged to have retaliated against his former law firm after he was terminated by hijacking the firm’s e-mail account, posting false and disparaging comments on Facebook about the lawyer who fired him, and communicating inappropriately with a client.

The referee’s report states that the lawyer was fired from his law firm after he used the firm credit card for personal matters, took unauthorized draws from the firm, missed work and took vacations without discussing them with the owner of the firm, made political comments on the firm’s Facebook page, and wrote a derogatory text message about his wife’s lawyer during his divorce. The lawyer’s text said: “Tell Dana Price I hope she dies of dirty Jew AIDS.”

After being terminated, the lawyer changed the password to his former firm’s e-mail accounts and, when the firm turned off the lawyer’s telephones, he agreed to restore the e-mail access only if the firm turned his telephones back on.  After this occurred, however, the lawyer again blocked the firm’s access to e-mail and directed the e-mails to himself.

The lawyer also posted to the law firm’s Facebook page falsely claiming that the firm owner had been “Baker Acted”, a reference to the Florida law related involuntary commitments when a person has a mental condition which poses a danger to that person or to others. The lawyer’s Facebook post also said the letters sent by the former law firm to firm clients that the firm’s e-mails were hacked were untrue.

According to the referee’s report:

“On or about September 5, 2017, Respondent posted the following on Parker & Green, P.A.’s Facebook page:

If you’re wondering what’s going on…Patricia Parker was Baker Acted last Saturday. She has sent letters to all of you clients saying everything was hacked. It wasn’t but please be careful if you decide to go with the law office of Patricia L. Parker. Nothing was hacked but she is trying to get off her suicidal thoughts and is convincing clients she is ok. Don’t worry, my email still works and I am working with the Florida Bar to make sure she gets the help she needs. If you are a client, do not pay a bill until the Florida Bar decides what they will be doing with Ms. Parker. Any correspondence by Alix Diaz who has hacked email accounts owned by Mr. Green, should also be taken with a degree of skepticism. She’s been off her meds for a few months and things have finally taken their toll. I think her impending divorce to her husband for infidelity is part of the problem. If you’re trying to reach Mr. Green, he can still be reached at pgreen@itspersonaljax.com as he owns the domain and website.”

“A short time later in a second post on the firm’s page, Respondent stated:

Everyone should make sure their loved ones don’t need any mental help. Please check. If your brother, sister, father, mother, or business partner threaten to commit suicide … please get them help, before they hurt someone, themselves, or a trusted client. Luckily, Mr. Green doesn’t have that problem. pgreen@itspersonaljax.com.”

The lawyer told the false Baker Act story to a firm client he saw at Everbank Field in Jacksonville. He also said that the other lawyer in the firm had violated ethics rules and that he would finish the client’s case for free if she would make a statement about the other lawyer. He also told the client he would like to get together for drinks to discuss the case.  The lawyer sent numerous texts to the client; however, she did not respond and she subsequently filed a Florida Bar complaint against the lawyer. After the client filed her Bar complaint, the lawyer approached her while she was working as a bartender, slammed his hand down on the bar and said, “Good luck with that complaint.”

The referee recommended a 60 day suspension, a requirement that the lawyer contact Florida Lawyers Assistance, Inc. (FLA, Inc.) within 30 days for an evaluation and comply with all requirements of the evaluation, including an FLA, Inc. contract if one is recommended, and payment of the Bar and FLA costs.  The Florida Supreme Court Order adopted the findings of the referee and suspended the lawyer for 60 days with the recommended conditions.

Bottom line: This is a lawyer who engaged in improper conduct while with a law firm and then apparently went out of control after being terminated, including posting disparaging comments on social media.  The Court has suspended the lawyer for 60 days and required that he undergo an evaluation through FLA, Inc. and, if recommended, to comply with any and all treatment requirements in an FLA contract.

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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ABA issues Formal Ethics Opinion 483 providing ethics guidance to lawyers before and after a cyber breach or hack

Hello everyone and welcome to this Ethics Alert which will discuss recent (October 17, 2018) American Bar Association Formal Opinion 483 which provides guidance to lawyers before and when there has been a cyber breach or hack.  The opinion is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_op_483.pdf

Just like to rest of our digital world, lawyers are susceptible to cyber hacking/breaches when using digital devices and programs or otherwise using the internet.  The ABA Opinion confirms the duty that lawyers have to attempt to prevent such hacks and breaches and also the lawyer’s obligation to notify clients of a data hack/breach.

The opinion provides the reasonable steps that lawyers can take to meet their obligations under the ABA model rules and emphasizes the importance for lawyers to plan for an electronic breach or cyberattack and discusses how model rules may apply when an incident is either detected or suspected. According to the opinion, the following Model Rules of Professional Conduct would potentially apply:

Rule 1.1 (competence), requiring lawyers to develop sufficient competence in technology to meet their obligations under the rules after a breach; Rule 1.15 (safekeeping property), requiring lawyers to protect trust accounts, documents and property the lawyer is holding for clients or third parties; Rule 1.4 (communication), requiring lawyers to take reasonable steps to communicate with clients after an incident; Rule 1.6 (confidentiality), regarding issues of confidentiality in the client-lawyer relationship; Rule 5.1 (lawyer oversight), which sets forth the responsibilities of a managing partner or supervisory lawyer and; Rule 5.3 (nonlawyer oversight), which sets forth the responsibilities of supervisors who are nonlawyers.

The opinion states that “(w)hen a breach of protected client information is either suspected or detected, Rule 1.1 requires that the lawyer act reasonably and promptly to stop the breach and mitigate damage resulting from the breach…(h)ow a lawyer does so in any particular circumstance is beyond the scope of this opinion.”

“As a matter of preparation and best practices, however, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach. The decision whether to adopt a plan, the content of any plan and actions taken to train and prepare for implementation of the plan should be made before a lawyer is swept up in an actual breach.”

Bottom line:  This ABA opinion addresses and discusses a lawyer’s obligations in attempting to prevent a cyber hack or breach and also provides guidance regarding the lawyer’s obligations if a breach/hack occurs.  All lawyers should be addressing serious issue this now and should consult their state/jurisdiction’s ethics rules to insure compliance.

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 ABA Formal Ethics Opinion 483 guidance to lawyers before and after a cyber breach or hack, ABA formal opinions, ABA Model Rules, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer competence technology, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer technology competence, Lawyer technology competence after hack or breach

Florida Bar Board of Governors approves revised rule on qualifying provider fees and ethics opinion on “expert” and “specialist”

Hello everyone and welcome to this Ethics Alert which will discuss recent (October 12, 2018) vote of The Florida Bar’s Board of Governors to approve substantive revisions to Bar Rule 4-7.14 related to the use of “expert” and “specialist” and to approve proposed ethics advisory opinion 17-2, which addresses payment arrangements between lawyers and lawyer referral services (now called qualified providers).    The ethics opinion has been renumbered to 18-1 and the Bar’s notice of the approval of the opinion and requesting comments with a link to the opinion is here:  https://www.floridabar.org/ethics/etprop-advisory/

With regard to the proposed revised Bar Rule 4-7.14, the Board considered a new proposed amendment that is designed to remove the portions of the rule which were found unconstitutional by the federal court judge in 2015.  The proposed revised rule adds new subdivisions to comply to the federal court’s order and also to address the concerns of the Florida Supreme Court, which rejected the Bar’s previous proposed revised rule.

Revised Bar Rule 4-7.14 would allow non-certified attorneys to call themselves “expert” or “specialist” if they can objectively verify that claim based upon the lawyer’s education, training, experience, and “substantial involvement” in the area of practice. The amended rule would also allow law firms to call themselves “experts” or “specialists” if that claim can be objectively verified for at least one lawyer in the firm.  The law firm making the claim would be required to have a disclaimer stating that not all firm members meet the same standards, if there are lawyers who do not qualify.

With regard to Ethics Advisory Opinion 18-1,the Board considered an opinion drafted by the Board Review Committee on Professional Ethics provides that whether a particular payment method between lawyers and qualifying providers f/k/a lawyer referral services is permissible must be determined on a case-by-case basis.  The opinion sets out criteria for determining whether a payment plan is proper and ethical and the ethics opinion is discussed and summarized in the Bar News article here: https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2F06fb4fe9ad6425748525830f004fc60b

The Board considered and approved the ethics opinion at its meeting on October 12, 2018 and will consider any comments at its December 14, 2018 meeting in Naples, Florida.

Bottom line:  The Florida Bar’s Board of Governors has taken further steps to address the issues related to the use of “expert” and “specialist” (and the federal court’s ruling that its application was unconstitutional and issuing an injunction) and also the payment arrangements between lawyers and lawyer referral services/qualifying providers.

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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Florida lawyer suspended for 18 months for engaging in personal misconduct while acting pro se as a party in a dissolution proceeding

Hello everyone and welcome to this Ethics Alert which will discuss a Florida Supreme Court opinion wherein the Court imposed an 18 month suspension on a lawyer who engaged in misconduct while representing himself as a party in a dissolution and child support proceeding.  The case is The Florida Bar v. Madsen Marcellus, Jr., No. SC16-1773 and the July 19, 2018 Supreme Court opinion is here:  http://www.floridasupremecourt.org/decisions/2018/sc16-1773.pdf

According to the opinion, a 2010 Order in the dissolution matter required the lawyer to refinance the marital home, remove his ex-wife’s name from the property since he had moved out, or sell the home. Before the closing of a pending sale and the ex-wife had vacated, the lawyer moved back in and the sale fell through.

The lawyer was then unable to refinance the house and, in an attempt to obtain a modification of the mortgage, a friend of the lawyer who was a notary signed the ex-wife’s name on the application in front of the lawyer and notarized it without the ex-wife’s knowledge or consent.

The ex-wife became aware of false notarization after the lawyer failed to make payments under the modified mortgage and she was served as part of a foreclosure filing.  The ex-wife then filed a motion for contempt since her name had not been removed from the house title as ordered. The trial judge withheld a contempt finding, but did order the lawyer to pay $2,500.00 the ex-wife’s fees.

The lawyer was served with discovery requests in the dissolution matter in 2013 related to his alleged failure to pay child support.  He failed to respond and also failed to appear in court when he was ordered to do so by the judge.  The lawyer was later sanctioned and ordered to pay the ex-wife’s fees.  He also remained in violation of several family court orders throughout the disciplinary matter.

The referee rejected the lawyer’s claim he missed some court appearances because he was representing clients, and noted that he made no attempt to advise the court of any conflicts. The referee also found the lawyer was deceptive in the disciplinary process.

The opinion upheld the referee’s factual findings and the findings that the lawyer violated various Bar rules in his actions related to his dissolution and child support matters but increased the referee’s recommended discipline from a 12-month suspension to an 18-month suspension.

The opinion referred to various previous Bar cases where lawyers had committed less serious Bar rule violations and received one-year suspensions.  The opinion also stated, as it has in previous Bar discipline opinions, that “the Court has ‘moved toward imposing stronger sanctions for unethical and unprofessional conduct.’ Fla. Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015).”

In addition, “(the lawyer’s) conduct was entirely unbecoming of a lawyer, who is held within a position of trust and respect in our society, and cannot be tolerated,” the court said in its opinion. “Although [the attorney] committed this misconduct as a party to his own divorce, lawyers ‘do not cast aside the oath they take as an attorney or their professional responsibilities’ just because they are litigants in personal matters. Fla. Bar v. Cibula, 725 So. 2d 360, 365 (Fla. 1998).”

Bottom line:  This case involves a lawyer who engaged in personal ethical misconduct as a party to a personal dissolution matter.  The Supreme Court opinion points out that the Court has “moved toward imposing stronger sanctions for unethical and unprofessional conduct” and lawyers “do not cast aside the oath they take as an attorney….just because they are litigants in personal matters.”  Lawyers must comply with the Florida Bar rules, even while acting as a party in a personal civil matter.

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, Florida Lawyer Ethics and Professionalism, Florida lawyer- misconduct in own divorce, Florida Supreme Court, 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 personal misconduct in divorce - suspension, Lawyer sanctions