Category Archives: Attorney discipline

Proposed Florida Bar rule initiated by Florida lawyer would make court finding of frivolousness “conclusive determination” of rule violation

Hello everyone and welcome to this Ethics Alert which will discuss the Petition initiated by a Florida lawyer to amend the Bar rules and provide that a court determination that an action violates F.S. §57.105, Florida appellate Rule 9.410, or Rule 11, Federal Rules of Civil Procedure “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  The Florida Bar published a Notice in the Florida Bar News that the petition will be filed on November 6, 2017 and members may comment on the Petition after it is filed.  The Bar Notice is here: 10-1-17 Bar News Notice of Filing Petition to Amend Rule.

The proposed rule revision would amend Florida Bar Rule 3-4.3 (misconduct or minor misconduct), by adding a section on frivolous actions which would provide if any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  Upon being notified of the finding, The Florida Bar would open a file, which would be sent to the grievance committee for review.

The proposed rule also provides that, unless there are aggravating circumstances, the referee or grievance committee considering the complaint can resolve the matter with an admonishment or referral of the lawyer to the Bar’s diversion program (lawyers would be eligible for diversion once every five years under the proposed rule).

The proposed rule would also require a lawyer who has had an appellate ruling that the a lawyer has violated the rules or state law on frivolous actions to notify the Bar within 10 days with copies to opposing counsel. Bar counsel would then docket the case “and The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”

The proposal would also amend the comment to Rule 4-3.1 to refer to the amendment to Rule 3-4.3. The comment to Rule 3-4.3 also provides that, “A lawyer shall not use any funds held in his trust account for payment of any personal obligation imposed upon the lawyer or the lawyer’s law firm as to sanctions pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule.”

The Florida Bar Rules allow members to directly propose amendments to Bar rules if the there is a petition filed with the Supreme Court signed by 50 Bar members.  This petition was signed by 55 Bar members.  The Board of Governors’ Disciplinary Procedure Committee (DPC) will review the proposed petition and rule amendments and will have a special meeting to discuss it.  A report by the DPC on the petition is expected at the Dec. 8, 2017 BOG meeting.

Bottom line:  This is rare member initiated petition to amend the Florida Bar Rules.  The amendment certainly appears to be well intended; however, since an order finding that a claim or defense is frivolous does not involve a criminal conviction, I am very concerned that the proposed rule that would make an order finding a frivolous filing by an appellate court on a civil matter “a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  I believe (and continue to believe) that a lawyer should be able to challenge such a court order since, among other things, the action and parties are different and the evidentiary requirements underlying such an order are not necessarily the same as those required for the Bar to prove a violation of the Bar rules.  In addition, the courts have inherent authority to sanction lawyers for frivolous filings as well as under the relevant statutes and court rules.

According to the Bar’s October 1, 2017 Notice in the Florida Bar News:

“Members who desire to comment on this proposed amendment may do so within 30 days of the filing of the above-referenced petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar and Thomas O. Wells, Esq. Rule 1-12.1 and Rule 3-7.15 of the Rules Regulating The Florida Bar govern these proceedings.”

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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Louisiana lawyer suspended for submitting false billable hours because he believed his partnership status required them

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court Opinion suspending a lawyer for 30 months with all but one (1) year deferred for false billable hours that he believed were necessary to maintain his partnership position and “in an effort to make himself look better on paper each month.”   The disciplinary case is:  In re: Kenneth Todd Wallace, Case No. 2017-B-0525.  The disciplinary opinion is dated September 22, 2017 and is here:  http://www.lasc.org/opinions/2017/17B0525.OPN.pdf

According to the opinion, the lawyer “joined the law firm of Liskow & Lewis as an associate attorney in 1998. After his promotion to shareholder in 2005, he served as the firm’s hiring partner and head of recruiting. He also chaired the firm’s diversity committee as the firm’s first minority recruiting and retention partner. In 2012, respondent was elected to the firm’s board of directors and served as the board’s junior director through April 2015.”

The lawyer stated that he made the false billing entries because he was concerned that his correct billable hours (along with an insufficient number of clients) were not adequate for a partner with his status.  “When his practice began to decline, (the lawyer) gave in to his own internal pressures and began to submit false time on a dismissed contingency fee matter, and eventually other matters, in an effort to make himself look better on paper each month.”

After the law firm became aware of his false billing in some client matters, the lawyer assisted the firm in conducting a full investigation.  The firm’s investigation showed that, between 2012 through 2015, the lawyer submitted 428 billing entries that the firm believed were “certainly false” and another 220 entries that the firm believed could be false or inflated; however, the law firm concluded that none of the false billing entries adversely affected any of the firm’s clients.

The lawyer had received $85,000.00 in merit bonuses between 2012 through 2015 and the firm concluded he would have received some or all of the bonuses even if he had not inflated his billable hours. The lawyer had also spent significant time with his firm management and committee responsibilities and had also met or exceeded billable targets during the years in question.  The lawyer resigned from the firm in 2015 and gave up his available bonus.

The disciplinary opinion imposed a 30 month suspension with all but one-year deferred.  The suspension was also made retroactive to January 2016, when the lawyer had been suspended on an interim basis pending the outcome of the matter.

Bottom line:  This is a very clear and unfortunate example of a lawyer who most likely destroyed his legal career after succumbing to the stress and pressure of a law partner’s need for large billable hours and a large number of clients (book of business).  I would imagine that, if asked, this lawyer would tell you that it was not worth it.

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, Attorney misrepresentation, fraud, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline false client billings, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer sanctions, Lawyers false billings discipline

Four south Florida lawyers arrested for involvement for illegal personal injury solicitation and provider kickbacks

Hello everyone and welcome to this Ethics Alert which will discuss the recent arrests of four south Florida lawyers who are  alleged to have improperly and illegally obtained personal injury victims as clients and referred them to health care facilities which then paid them cash for the referrals.

According to media articles and criminal charging documents, four south Florida lawyers have been charged with crimes  ranging from money laundering to organized fraud and patient brokering.  The lawyers are Steven Slootsky, whose record Bar address is in Boca Raton, and Adam Hurtig, Mark Spatz, and Vincent Pravato, whose record Bar addresses are in Fort Lauderdale.  The lawyers were arrested on or about September 6, 2017.

The lawyers are alleged to have improperly and illegally obtained personal injury victims as clients and referred them to health care facilities which paid cash to the lawyers for the referrals.  According to arrest records, the lawyers allegedly paid runners from towing companies and body shops to improperly solicit victims of motor vehicle accidents.  Those individuals were allegedly then referred to clinics for medical treatment and the clinics would illegally pay for the referrals.

The arrest report states that the lawyers “were actively involved in illegal patient brokering and the unlawful solicitation of motor-vehicle accident victims throughout South Florida…after the patient was brokered to the health care facility, the facility was then able to begin treatment and bill the auto insurance companies for claims covered by the PIP benefits, which resulted in fraud on the insurance companies.”

It is illegal under federal law for a doctor, clinic, or other health care provider to pay for patient referrals and for a “patient broker” to receive kickbacks for sending patients to a health care provider.  It is also a violation of the Florida Bar Rules for an agent of a lawyer to improperly solicit a client, for a lawyer to pay non-lawyers and clinics for referrals, and for the lawyer to receive payment or a fee based upon an improper solicitation.  Of course, it is certainly a violation of the Florida Bar Rules to commit a crime.

Bottom line: I have heard anecdotally that these activities have been occurring in south Florida for many years (and potentially throughout our entire state, particularly in urban areas).  These lawyers are certainly presumed innocent unless and until they are proven guilty; however, if the allegations are shown to be true, this is an extremely unfortunate blight on the legal profession.  On the other hand, this could potentially discourage others from doing (or continuing to do) this in the future.

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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Virginia lawyer previously suspended after disrupting CLE seminar suspended for 5 years on new candor violations

Hello everyone and welcome to this Ethics Alert which will discuss the recent 5 year suspension of a Virginia lawyer who was previously suspended for 6 months in 2015 for disrupting a CLE seminar and suspended for 3 years in 2016 when he failed to undergo treatment required pursuant to the 2015 suspension.  The 6 month suspension Order dated March 27, 2015 is here: http://www.vsb.org/docs/Hartke-050615.pdf and the 3 year suspension Order dated October 27, 2016 is here: http://www.vsb.org/docs/Hartke-110416.pdf.

According to the Virginia State Bar website, “on August 25, 2017, the Virginia State Bar Disciplinary Board suspended Wayne Richard Hartke’s license to practice law for five years effective October 27, 2019, for violating professional rules that govern candor toward the tribunal.  The suspension will be consecutive to a three-year suspension issued on October 27, 2016.”

According to the March 27, 2015 Disciplinary Board Order, the lawyer was intoxicated and disruptive at a Continuing Legal Education program.  Witnesses at the CLE seminar said that the lawyer was sleeping and loudly snoring during the morning session and then yelling at the video screen during the afternoon session.  A witness also said he smelled of alcohol and had a bottle of liquor with him at the seminar.  The lawyer was led from the seminar room by another person attending the seminar.

The lawyer was suspended for six months for that CLE disruption and for “failing to correct misrepresentations that he made to the Virginia State Bar during the disciplinary proceedings”.  The Order also required him to enroll in a two-year treatment and monitoring program stated that any notice of noncompliance would result in an order to show why his license should not be suspended for an additional three years.  According to the October 27, 2016 disciplinary Order, the lawyer failed to comply with the terms of the 2015 Order.  He also failed to show up for the disciplinary hearing.  The Disciplinary Board found that the violation was proven and suspended the lawyer for three (3) years, effective October 27, 2016.

The lawyer had previously been reprimanded in 2010 after settling a legal malpractice lawsuit which alleged that he failed to protect the interests of the members of the board of directors of a corporate client.  He was reprimanded again in 2011 when he was held in contempt and served 10-day jail sentence after his blood alcohol content was found to be .127 during a court appearance.

Bottom line:  According to the facts set forth in the disciplinary Orders, this lawyer has some serious and ongoing issues with both alcohol and candor.  The ultimate result was a 5 year suspension effective October 27, 2019 after he completes his current 3 year suspension and, unless that suspension is modified, it will continue until October 27, 2024.

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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Ohio lawyer receives 1 year stayed suspension for citing to, inter alia, the client’s “potentially illegal actions” in motion to withdraw

Hello everyone and welcome to this Ethics Alert which will discuss the recent Supreme Court of Ohio opinion imposing a one-year stayed suspension on a lawyer who filed a motion to withdraw which revealed attorney/client confidential information without the client’s permission or an exception authorizing the disclosure.  The case is Cleveland Metro. Bar Assn. v. Heben, Slip Opinion No. 2017-Ohio-6965 (July 27, 2017) and the opinion is here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-6965.pdf

According to the opinion, the lawyer had briefly represented the client in 2008 during the initial stages of her divorce case.  The divorce proceedings were still pending in September 2013 and the client again retained the lawyer for legal assistance. The parties stipulated to the following facts in the Bar matter: (1) the client paid the lawyer a $3,000 retainer on or about September 15, 2013, (2) the lawyer filed a notice of appearance in the divorce case on September 16, 2013, and (3) less than two weeks later, the client terminated the lawyer’s legal services.

After the client terminated his services, the lawyer moved to withdraw as counsel and also submitted a supporting affidavit purporting to state his reasons for seeking withdrawal with the motion. According to the opinion, in the affidavit, the lawyer “recounted communications he had had with (the client) about the scope of his representation and his compensation, accused her of refusing to pay his agreed-upon fees ‘without cause,’ and disclosed legal advice that he had given her. He also described (the client’s) discharge of him as ‘retaliatory’ and alleged that it had ‘occurred because of [his] advice to her concerning her objectionable and potentially illegal actions’ relating to her exhusband, which he characterized as ‘a problem similar to the one [he] experienced in [his] previous representation of her.’”

The judge in the divorce case struck the lawyer’s affidavit from the record and, in his testimony at the disciplinary hearing, the judge stated that he believed that the contents of the affidavit, specifically the disclosure of attorney/client communications, were inappropriate and not necessary to seek withdrawal.

The opinion imposed a one-year suspension which was stayed on the condition that he “commit no further misconduct.”  Two justices dissented and “would suspend respondent for one year with six months stayed”, which was the recommendation of the Disciplinary Board.

Bottom line:  As this case again illustrates, lawyers must never reveal confidential attorney/client confidences in court documents, including a Motion to Withdraw, unless the client authorizes the disclosure or an exception applies which would permit or require the disclosure.

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 Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Ethics and lawyer withdrawal, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing confidential information in motion to withdraw, Lawyer sanctions

West Virginia lawyer suspended for 2 years for, inter alia, twice billing over 24 hours in one day

Hello everyone and welcome to this Ethics Alert which will discuss the recent West Virginia Supreme Court opinion which suspended a lawyer for 2 years for, inter alia, billing for over 24 hours in one day on two occasions.   The case is West Virginia Lawyer Disciplinary Board v. Michael P. Cooke, SC No. 15-1243 April 20, 2017).  The Supreme Court’s opinion is here:  http://www.courtswv.gov/supreme-court/docs/spring2017/15-1243.pdf

According to the opinion, “during the time period of January 21, 2014, through September 18, 2014, Cooke billed more than fifteen hours a day on thirty-seven different days. On five of those days, he billed in excess of twenty hours and on two of those days, he billed greater than twenty-four hours. Cooke maintains that during that period of time he was billing the time of the contract attorneys working for him, as well as his own.  However, per Cooke’s own testimony, this would have occurred for only some portion of the time period at issue inasmuch as his ‘full-time’ contract attorney quit in late-March, leaving only the part-time contract attorney, who likewise quit at some point later that year.”

“Moreover, during this time period, Cooke contends that he was suffering from diagnosed ‘low testosterone’ which caused him to sleep between ten and sixteen hours a day; medical records introduced into evidence do in fact support such a diagnosis in June, 2014. Cooke maintains that this fatigue continued throughout the time frame in which the guardian ad litem matter was ‘pending’ and continued until November, 2014.”

“Cooke’s extraordinary overbilling was not only intentional and pervasive within the time period at issue, but long-standing. Given the state of the public fisc, the actual injury to the taxpayers of the State of West Virginia is all too real. As the Supreme Court of Ohio stated, overbilling the state for representing indigent clients ‘exploit[s] an already overburdened system designed to aid the poorest members of our society and lessen[s] public confidence in the legal profession and compromise[s] its integrity.’ Holland, 835 N.E.2d at 366. Cooke’s misconduct in that regard, therefore, profoundly affects the public, the legal system, and the profession.

“Moreover, while the bulk of the foregoing discussion has been dedicated to Cooke’s overbilling to PDS, by no means does this Court intend to minimize the seriousness of Cooke’s other violations. In particular, Cooke’s failure to timely file a guardian ad litem brief with this Court in an abuse and neglect matter is not only violative of the Rules of Professional Conduct, but in complete disregard of the countless warnings issued by this Court regarding the appellate obligations of guardians ad litem…”

“Therefore, giving Cooke the benefit of every doubt, this purported fatigue and reduced working capacity would have existed from approximately February until November, 2014—the exact time period under scrutiny for overbilling. Per Cooke’s own testimony, therefore, during this time there would have been between only eight and fourteen hours of the day in which he could even be awake to perform work.”

After summarizing West Virginia cases and standards, the opinion stated the following:

“In view of the foregoing, we find that Cooke’s misconduct warrants a two-year suspension from the practice of law. Cooke’s defrauding of the State through overbilling, gross mishandling of a client matter and funds, his dereliction of duty to his infant clients as a guardian ad litem—all of which is compounded by his unrelenting pattern of unresponsiveness and empty reassurances of remediation—plainly justify this degree of discipline.”  The disciplinary hearing panel had recommended a three month suspension and the Office of Disciplinary Counsel recommended a suspension of 18 months.

Bottom line: This lawyer was found to have engaged in serious and excessive overbilling and the opinion found that the overbilling was “intentional and pervasive”.  Among other things, he claimed in mitigation that he had low testosterone “which caused him to sleep between ten and sixteen hours a day.”   The lawyer was suspended for 2 years for this serious misconduct.

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.

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

Leave a comment

Filed under and fraud, Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, Excessive fee, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer excessive fee, Lawyer excessive fees, Lawyer false statements, Lawyer overbilling excessive fees