Category Archives: ABA formal opinions

ABA formal ethics opinion provides guidance for recusal of judge because of a personal relationship

Hello everyone and welcome to this Ethics Alert, which will discuss ABA Formal Opinion 488, which provides guidance on a judge’s obligation to recuse because of a social or close personal relationship with a lawyer or party.  ABA Formal Opinion 488 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_488.pdf

According to the opinion, which was released on September 5, 2019, a judge is not required to automatically recuse or be disqualified if a lawyer or party in a matter before the judge is an acquaintance or friend; however, recusal or disqualification is necessary when the judge is in a close personal relationship with a lawyer or party in a matter.

Formal Opinion 488 interprets the Model Code of Judicial Conduct Rule 2.11, which requires judges to identify situations where their impartiality might reasonably be questioned—an age-old and fluid determination, beyond the specific provisions in Rule 2.11(A)(1)-(6).  The opinion states “that relationships vary widely, potentially change over time, and are unique to the people involved.” As such, the opinion trifurcates judge’s social interactions and relationships into (1) acquaintanceships; (2) friendships; and (3) close personal relationships.

Rule 2.11(A)(1) addresses the standard of when “impartiality might reasonably be questioned.” In addition, Rule 2.11(A)(2) specifies situations where “the judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.”

The opinion notes that a judge must recuse or be disqualified when the judge has or pursues a romantic relationship with a lawyer or party in a matter; however, other “close personal relationships” (such as amicably divorced individuals who maintain joint custody), require that the judge follow Rule 2.11(C), which permits disclosure and waiver of the recusal.

Under Rule 2.11(C), a judge subject to disqualification because of a friendship or close personal relationship may disclose on the record the basis of the potential disqualification and ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive the disqualification.  If the parties and lawyers agree after the disclosure (and without participation by the judge or court personnel), that the judge should not be disqualified, the judge may participate in the proceeding. The stipulation must be incorporated into the record of the proceeding.

The opinion states that a close personal relationship is covered by Rule 2.11(A)(2) and requires disqualification, but acquaintances do not.  Further, whether friendships should result in disclosure and recusal depends on the specific facts. The opinion does not address social media (such as Facebook “friendships”) and states that interaction on social media does not itself indicate the type of relationship participants have with one another either generally or for purposes of the opinion.

Bottom line:  This opinion provides guidelines for judges (and lawyers) on a judge’s obligation to recuse (or be subject to disqualification) because of a social or close personal relationship with a  lawyer or party.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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ABA Formal Opinion 484 provides guidance when a client may need third party legal fee financing

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 484, which addresses third party financing of the lawyer’s fees and concludes that a lawyer may refer a client to a fee financing companies even if the lawyer owns a financial interest in the lender or broker if the lawyer complies with ethical obligations, including fairness and full disclosure.  ABA Formal Opinion 484 is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_484.pdf

American Bar Association Formal Opinion 484, which was released on November 27, 2018, concludes that lawyers may refer clients to fee financing companies even if the lawyer owns a financial interest in the lender or broker with certain caveats and requirements.

The opinion outlines the various ways that fee financing services are being used, including a client’s direct application for a loan from a financing company to cover the lawyer’s fees, which the client then pays back to the lender with interest rates between 5 and 15 percent. In another situation, the lawyer pays an initial fee to a finance company in order to submit loan applications from clients and, if the client receives the loan, the lawyer receives the funds minus a 10 percent financing fee.  In a similar arrangement, the lawyer assists a client to set up what is amounts to a retainer or voucher for the fees through a lender minus a service charge.

In other situations, the funds loaned to the client may go directly to the client and the lawyer is notified, sometimes through an online portal a service, for which the lawyer pays. There are also “same as cash” programs, where the lawyer helps the client apply for the loan and, if a loan is made, the financial relationship remains between the lender and the client.  Finally, a lawyer may work with a financial brokerage company that helps find legal fee financing options.

In the above arrangements, the attorney making the referral does not have an ownership or financial interest in the lender or broker and must explain the arrangement so the client can make an informed decision.  The opinion states that these arrangements are permissible only if other Model Rules of Professional Conduct are met, including: Model Rule 1.2(c) (Scope of Representation and Allocation of Authority Between Client and Lawyer); Model Rule 1.4(b) (Communications); Model Rule 1.5(a) and (b) (Fees); Model Rule 1.6 (Confidentiality of Information); Model Rule 1.7(a)(2) (Conflict of Interest: Current Clients); and Model Rule 1.9(a) (Duties to Former Clients).

In a footnote, the opinion refers to Florida Bar Ethics Opinion 16-2 and states that this opinion “reason(ed) that legal fee financing is not impermissible fee sharing because it is a form of credit plan and Florida ethics rules permit lawyers to accept payments through credit plans, which include credit cards.”  That opinion specifically addressed the fees of a criminal defense lawyer.  Florida Bar Ethics Op. 16-2 is here:  https://www.floridabar.org/etopinions/etopinion-16-2/

The opinion only addresses situations where a lawyer is being paid from funds that a client borrowed and does not address a nonrecourse cash advance to a litigant in exchange for a percentage of the judgement or settlement.  According to the opinion, if a lawyer recommends a fee financing or brokerage company in which the lawyer has an ownership or financial stake, the lawyer must disclose the relationship, ensure fair and reasonable terms, advise the client to seek independent legal advice on the transaction, and obtain the client’s  written informed consent.

The ABA formal opinion further states that if a lawyer charges a higher fee to account for any transactional costs or subscription fees the lawyer must pay the lender, that fee must be reasonable and disclosed to the client. Additionally, the opinion cautioned that lawyers should not “recommend the finance company or broker to the client even though fee financing is not in the client’s interests because the client’s arrangement of financing best assures payment or timely payment of the lawyer’s fee.”

“Finally, although not among the fee financing scenarios of which the Committee has been made aware, it is conceivable that a lawyer might acquire an ownership or other financial interest in a finance company or brokerage, or wish to form such a business. If a lawyer did so and referred a client to that entity, the lawyer would be entering into a business transaction with the client or would be acquiring a security or pecuniary interest adverse to the client, or both. In those situations, the lawyer would need to comply with Model Rule 1.8(a) (which is substantially the same as Florida Bar Rule 4-1.8(a).”

Bottom line:  This ABA opinion sets forth the lawyer’s obligations related to third party financing of the lawyer’s fees and concludes that a lawyer may refer a client to a fee financing company even if the lawyer owns a financial interest in the lender or broker if the lawyer complies with all ethical obligations.

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 ABA Formal Opinion 484 third party financing of attorneys fees, ABA formal opinions, ABA Model Rules, Attorney Ethics, Florida Bar Ethics Opinion 16-2- legal fee and other third party financing, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism

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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ABA Formal Opinion 481 states that lawyers have an obligation to inform current clients of material errors

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 481, which addresses a lawyer’s obligation to promptly inform a current client if the lawyer believes that he or she has made a material error.  ABA Formal 481 Opinion is here: http://www.abajournal.com/files/Formal_Opinion_481_FINAL_formatted_04_16_2018(2).pdf

The formal opinion states ABA Model Rules of Professional Conduct Rule 1.4 governs a lawyer’s duty of communication and requires lawyers to promptly inform clients of any decision or circumstance for which a client’s informed consent is needed and also requires a lawyer to “reasonably consult” with the client about the means of achieving the client’s goals during representation and keep the client “reasonably informed” about the progress of the case.

The formal opinion further states that an error is material if “a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice” and if there has been such a material error, the attorney must inform the client promptly. Whether an attorney can correct the error before telling the client depends on the individual facts.

According to the opinion, there is no duty to inform former clients since “(n)owhere does Model Rule 1.4 impose on lawyers a duty to communicate with former clients (and)  (h)ad the drafters of the Model Rule intended Rule 1.4 to apply to former clients, they presumably would have referred to former clients in the language of the rule or in the comments to the rule.”

The formal opinion concludes:

“The Model Rules require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. The lawyer must so inform the client promptly under the circumstances. Whether notification is prompt is a case and fact specific inquiry.

No similar duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation.”

Bottom line:  This ABA opinion may be the first to address a lawyer’s affirmative obligation to tell a current client when he or she has made a material error, which the opinion states is one which is “(a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

Be careful out there.

Disclaimer:  this Ethics Alert blog 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 ABA Formal Ethics Opinion 481- advising clients of material errors, ABA formal opinions, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer required to advise client of material errors

ABA Formal Opinion 479 addresses when lawyers may use “generally known” information related to a former client

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 479, which was published on December 15, 2017 and addresses when a lawyer may use information related to the representation of a former client which is to the actual or potential disadvantage of the former client when the information has become “generally known”.  The ABA opinion is here: ABA Formal Opinion 479

ABA Model Rule 1.9(c)(1) provides that a lawyer “shall not use information relating to former client’s representation to the disadvantage of the former client except as (the Model) Rule would permit or require with respect to a [current] client, or when the information has become generally known.”

The opinion also states that the “generally-known” exception to Rule 1.9 was first included in the 1983 ABA Model Rules; however, there is no consensus regarding when information is “generally known.” New York, Massachusetts, and Illinois Bar opinions and ethics commentators agree that “generally known” means “more than publicly available or accessible. It means that the information has already received widespread publicity.”

According to the opinion, the “generally known” exception to the obligations related to former-client confidentiality is limited to the following:

(1) use of the former client information, not the disclosure or revelation of the information,

(2) use of the information only if the information has become widely recognized by the public in the relevant geographic area or widely recognized in the former client’s industry.

The opinion quotes an ethics commentator:

“[T]he phrase “generally known” means much more than publicly available or accessible. It means that the information has already received widespread publicity. For example, a lawyer working on a merger with a Fortune 500 company could not whisper a word about it during the pre-offer stages, but once the offer is made—for example, once AOL and Time Warner have announced their merger, and the Wall Street Journal has reported it on the front page, and the client has become a former client—then the lawyer may tell the world. After all, most of the world already knows. . ..[O]nly if an event gained considerable public notoriety should information about it ordinarily be considered “generally known.”

The fact that information has been discussed in court or may be accessible in public records does not necessarily make the information widely recognized (and “generally known”) under Model Rule 1.9(c) since information that is publicly available is not necessarily widely recognized and, if a search of court records or library shelves is required to find the information, it would not be  widely recognized.

Bottom line: This ABA opinion provides guidance on important ethics issues related to when a lawyer is permitted to use information that is detrimental to a former client when it has become “generally known” and provides guidance.  Although the opinion (and most state Bar rules) permit lawyers to use, but not disclose, “generally known” information even if it disadvantages a former client, lawyers should always carefully consider whether this would be prudent and, if the lawyer decides to do so, obtain the client’s consent in advance.

This ABA opinion is not binding and the analysis is applicable in most, if not all jurisdictions, including Florida; however, lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

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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ABA Formal Opinion 480 addresses lawyer/client confidentiality obligations related to lawyer blogs and other public commentary

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 480, which was released on March 6, 2018 and addresses lawyer ethics and confidentiality obligations when engaging in blogging and other public commentary.  The ABA Formal Opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.authcheckdam.pdf

The opinion initially sets forth the various types of lawyer public communications and commentary, including online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that ‘followers’ (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively ‘public commentary’).”

The opinion provides important information regarding the broad scope of lawyer/client confidentiality under the rule, the limited exceptions to the rule, and whether a lawyer can pose a “hypothetical” to avoid violating the rule.  The information is below with relevant portions in bold:

This confidentiality rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”  In other words, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information.

Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohibited from commenting publicly about any information related to a representation. Even client identity is protected under Model Rule 1.6.  Rule 1.6(b) provides other exceptions to Rule 1.6(a).  However, because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.

Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.  The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that other may be aware of or have access to such knowledge.

A violation of Rule 1.6(a) is not avoided by describing public commentary as “hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.  Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.

The opinion concludes that “(l)awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”

Bottom line:  This ABA opinion addresses the ethics issues related to lawyer blogs and public commentary and client confidentiality and provides guidance.  The opinion is not binding; however, it provides important information and the analysis is applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

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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Filed under ABA formal opinions, ABA Opinion 480- guidance re confidentiality when lawyers blog or engage in public commentary, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer blogs, Lawyer communication over internet- confidentiality, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism

ABA revises recent Formal Opinion 477, which addresses lawyer ethics issues when transmitting confidential information over the internet

Hello everyone and welcome to this Ethics Alert update which will discuss Revised ABA Formal Opinion 477, which was issued on May 22, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  According to the ABA, Formal Opinion 477 was revised to clarify that the opinion does not alter Formal Ethics Opinion 11-459 and to note that the change in Model Rule 1.6(c) supported 11-459. There are no substantive changes to the opinion.  The revised Formal Opinion is here: Revised ABA Formal Opinion 477.

ABA Formal Opinion 477 states:  “In Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.” (emphasis supplied).`

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”  (emphasis supplied).

Bottom line:  The now revised ABA formal opinion addresses the important ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

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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Filed under ABA formal opinions, ABA opinion 477- communication with client over internet, Attorney Ethics, Confidentiality, joe corsmeier, Joseph Corsmeier, Lawyer communication over internet- confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions