Category Archives: attorney-client privilege

New Jersey lawyer suspended for, inter alia, revealing confidential information in review of former client’s business

Hello everyone and welcome to this Ethics Alert, which will discuss recent New Jersey Supreme Court opinion which imposed a one year suspension on a lawyer for, inter alia, providing a negative public review of a client’s business on Yelp and disclosing confidential information in the review.  The case is: In the Matter of Brian LeBon Calpin (New Jersey Supreme Court No. D-67 083821).  The May 7, 2020 opinion is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1129260

The NJ SC opinion essentially adopts the NJ Disciplinary Review Board Decision which found that the lawyer posted a negative public review of the client’s massage business on June 24, 2018 on the Yelp website after the client had posted public negative online reviews of his legal services.  The lawyer had ceased representing the client in “early summer 2017”.  The DRB Decision is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1124239

According to the Decision, the lawyer’s review of the former client’s massage business on Yelp stated:

“Well, Angee is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

The Decision further states that, in his response to the ethics complaint, lawyer stated:

“As to the Yelp rating about (the former client’s) massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment. However, it was not unethical. That posting has subsequently been taken down.”

The Decision found that, although the information posted by the lawyer may have been publicly available, the information was not generally known; therefore, the “generally known” exception in the New Jersey Bar rules regarding client confidentiality did not apply.  The decision also quoted ABA Formal Opinion 479 (December 15, 2017):  “[T]he phrase ‘generally known’ means much more than publicly available or accessible. It means that the information has already received widespread publicity.”

The Decision also found that the lawyer’s conduct in three other client matters violated ethics rules related to neglect, diligence, failure to keep clients informed, failure to deliver client funds or property, and failure to return client property after representation. The lawyer also told to a Bar investigator that he had sent a refund check to a former client, which was a misrepresentation.

The lawyer had prior discipline for “similar ethics infractions, evidencing his failure to learn from past mistakes: a June 19, 2014 reprimand for gross neglect, lack of diligence, and failure to communicate with a client, and a January 24, 2017 admonition for lack of diligence in a client matter.”

Bottom line:  This is another unfortunate example of a lawyer reacting badly to a client’s negative online review and including confidential (and not generally known) information in responding to a negative client review.  As I have said and written many times, lawyers are not permitted to include client confidential information in responding to negative online reviews that are in the public domain.

Stay safe and healthy and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

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 specifically incorporates lawyer-fiduciary privilege into the Florida Evidence Code, F.S. §90.5021

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion adopting and incorporating lawyer/fiduciary privilege into Florida Evidence Code, F.S. §90.5021.  The Supreme Court opinion adopting the revisions is In Re: Amendments to the Florida Evidence Code – 2017 Out of Cycle Report, Case No. SC17-1005 (January 25, 2018) and the court’s opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc17-1005.pdf

As background, in 2011, the Florida Legislature enacted F.S. §90.5021, which applies the privilege to attorney communications with a client who is a trustee, personal representative, or guardian to the same extent as if the client were not acting as a fiduciary.  The statute was intended to end the issue of whether beneficiaries should be given access to information and advice given to fiduciaries by their lawyers and the statute appeared to confirm that they should not be provided such information and advice.

Also in 2011, the Florida Bar’s Probate Rules Committee petitioned the Florida Supreme Court to adopt an amendment to Florida Probate Rule 5.240(b)(2), which provides the requirements for notices of estate administration.  The amendment required the notice to include a statement that “the fiduciary lawyer-client privilege in section 90.5021, Florida Statutes, applies with respect to the personal representative and any attorney employed by the personal representative.”   This probate rule was approved by the Florida Supreme Court, effective September 28, 2011.

The Florida Evidence Code provisions which contain substantive law are reviewed and implemented by the Florida legislature and the procedural provisions are reviewed and implemented by the Florida Supreme Court; therefore, the court does not review and implement substantive law provisions.

In 2014, the Florida Supreme Court declined to adopt proposed F.S. §90.5021, which would have protected attorney/fiduciary privilege in the Florida Statutes.  This created a conflict with the previously approved Florida Probate Rule, which applied the privilege created by the 2011 F.S. §90.5021 to fiduciaries, which caused uncertainty.

To attempt to resolve this uncertainty, The Florida Bar’s Probate Rules Committee and the Code and Rules of Evidence Committee filed an out of cycle report and petition requesting the Court to resolve the conflict and implement the statutory provision to the extent that it is procedural.  In response to that petition, the Florida Supreme Court issued its opinion adopting §90.5021, Fla. Stat., which provides that the attorney-client privilege applies even when the client is a fiduciary to the extent that it is procedural.  The opinion stated that the provision “is effective retroactively to June 21, 2011, the date it became law.”

Bottom line:  I have discussed this issue and the uncertainty with lawyers and in seminars since the issue arose in 2014.  This opinion resolves the uncertainty and protects the lawyer/fiduciary privilege along with Florida Probate Rule 5.240(b)(2) and it is unlikely that the legislature will challenge the statutory provision as substantive.

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 .S. Supreme Court, Attorney fiduciary privilege, attorney-client privilege, attorney/client privilege, Attorney/client privilege and confidentiality, Confidentiality and privilege, Florida Bar, Florida Statutes lawyer fiduciary privilege, Florida Supreme Court, joe corsmeier, Joseph Corsmeier