Category Archives: Attorney Ethics

Arizona becomes first U.S. state to authorize non-lawyer ownership of law firms and fee sharing

Hello everyone and welcome to this Ethics Alert, which will discuss the Arizona Supreme Court’s recent implementation of rule revisions which will permit non-lawyers to own law firms and share fees with lawyers, and also makes other significant rule revisions.  The link to the Court’s August 27, 2020 press release explaining the rule revisions is here:  http://www.azcourts.gov/Portals/201/Press%20Releases/2020Releases/082720RulesAgenda.pdf

When the rule revisions become effective on January 1, 2021, Arizona will become the first U.S. state to implement revisions to its Bar rules permitting non-lawyer ownership of law firms and permitting non-lawyers to share fees with lawyers.

According to the press release, the rule revisions are intended to promote innovation and make legal services more affordable and still protecting the public.

“The court’s goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help.”  “These new rules will promote business innovation in providing legal services at affordable prices.”

The press release states that, after the revised rules become effective, the court will adopt a new licensure process to allow non-lawyers, called “legal paraprofessionals,” to provide limited legal services to the public, including representing clients in court proceedings.  The revisions also eliminate rule 5.4, which prohibits non-lawyers from having an ownership interest in a law firm; however, these “alternative business structures” will be required to obtain licenses.

The Arizona Supreme Court also made revisions to the Bar rules regulating lawyer advertising “most of which align with recent changes made to the American Bar Association’s Model Rules.”

The press release states that more information about the revisions is on the Court’s Access to Legal Services webpage at https://www.azcourts.gov/accesstolegalservices/

Bottom line:  The Arizona Supreme Court’s decision to revise the Bar rules continues the growing trend toward permitting non-lawyers and non-traditional entities to become involved in legal practice and the legal process.

As I previously blogged here: https://jcorsmeier.wordpress.com/2020/08/18/utah-supreme-court-authorizes-pilot-program-which-inter-alia-permits-non-lawyers-to-own-law-firms-and-share-fees-with-lawyers/, the Utah Supreme Court also recently approved a two-year “regulatory sandbox” pilot program permitting non-lawyers to experiment with different methods of delivering legal services outside of the existing regulatory framework.  Washington, D.C. and other states are also considering potential revisions related to the restrictions on non-lawyer involvement in the practice of law.

Stay safe and healthy 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.

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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Filed under 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, 2020 Arizona adoption of ABA advertising rules, 2020 Arizona authorization of non-lawyer practice, fee sharing and limited practice, 2020 Utah Supreme Court Order approving sandbox and non- lawyer practice and ownership, ABA Model Rules, ABA revised advertising rules, Arizona Supreme Court authorization of non-lawyer ownership of law firms, sharing fees, and practice of law, Attorney Ethics, fee sharing, Fee sharing with non-lawyer owned firms, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation APRL report, Lawyer advertising rules, Lawyer ethics, lawyer fee splitting, Lawyer referral fees, Lawyer sharing fees with non-lawyers, Non lawyer compensation, Non-lawyer limited practice, Non-lawyer limited practice of law, Non-lawyer ownership, Non-lawyer ownership of law firms, non-lawyer ownership of law firms and fee splitting, Non-lawyer practice, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized

Utah Supreme Court authorizes pilot program which, inter alia, permits non-lawyers to own law firms and share fees with lawyers

Hello everyone and welcome to this Ethics Alert, which will discuss recent Utah Supreme Court approval of a pilot program which would permit non-lawyers to own law firms, share fees with lawyers, and makes other significant revisions.  The link to the Utah Supreme Court’s Standing Order No. 15 approving the pilot program is here:  http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2020/08/FINAL-Utah-Supreme-Court-Standing-Order-No.-15.pdf and the Utah Bar Rule revisions related to the pilot program are here: http://www.utcourts.gov/utc/rules-approved/2020/08/13/supreme-court-regulatory-reform-effective-august-14-2020/.  The Standing Order and Rule revisions were effective August 14, 2020 and will sunset in two years unless there is a further order of the Court.

The details of the “pilot legal regulatory sandbox” are set forth in the Supreme Court’s Standing Order 15 and in the revisions to the Utah Rules of Professional Conduct.  The program creates a “regulatory sandbox” for non-traditional legal providers and services, including entities with non-lawyer investment or ownership and also creates an Office of Legal Services Innovation, which will assess the sandbox applicants and make recommendations to the Court and also supervise the applicants who are authorized by the Court to offer legal services.

According to the Utah Supreme Court’s August 13, 2020 press release:

“These changes allow individuals and entities to explore creative ways to safely allow lawyers and non-lawyers to practice law and to reduce constraints on how lawyers market and promote their services. In order to assess whether the changes are working as intended, the Supreme Court has authorized the core portions of these changes for a two-year period. At the conclusion of that time, the Supreme Court will carefully evaluate whether the program should continue. The evaluation will be based on a review of data collected from those entities and individuals participating in the program. The Supreme Court’s willingness to experiment with innovation is an important step, especially now, because the need for more affordable legal help has reached crisis levels as a result of the COVID-19 pandemic and its economic fallout.”

According to the press release, after the 90 day period which was allotted for input, the Supreme Court made a number of changes to the initial proposals. These changes “included: (1) increasing transparency into the application and approval process, (2) adding clearer channels for complaints regarding the new legal services, (3) severely restricting any roles for disbarred or suspended lawyers and those with certain felony convictions, (4) more explicitly articulating the program’s access-to-justice goals, (5) and more clearly delineating that the program will sunset in two years absent further order of the Supreme Court.”

The Utah Supreme Court’s press release is here: https://www.utcourts.gov/utc/news/2020/08/13/to-tackle-the-unmet-legal-needs-crisis-utah-supreme-court-unanimously-endorses-a-pilot-program-to-assess-changes-to-the-governance-of-the-practice-of-law/

Bottom line:  If the Utah Supreme Court’s pilot program is made permanent, it will radically change the practice of law in Utah and may also become the wave of the future in other states and jurisdictions.

Stay safe and healthy 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.

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

4 Comments

Filed under 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, 2020 Utah Supreme Court Order approving sandbox and non- lawyer practice and ownership, Attorney Ethics, fee sharing, Fee sharing with non-lawyer owned firms, joe corsmeier, Joseph Corsmeier, Lawyer ethics, lawyer fee splitting, Non-lawyer ownership, Non-lawyer ownership of law firms, non-lawyer ownership of law firms and fee splitting, Non-lawyer practice, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized, Utah Supreme Court regulatory sandbox

The ethical and professional risks and hazards of sending e-mails and tips on how to avoid them

Hello everyone and welcome to this Ethics Alert which will discuss the ethical risks and dangers of e-mails and provide tips on how to avoid them.

Electronic mail has certainly become the primary form of communication for most lawyers (even more than texting and Zoom); however, lawyers must always remember that their e-mails could be read not only by the intended recipients but also by third parties.  A lawyer’s e-mails can (and do) also become potential evidence in Bar discipline hearings and malpractice lawsuits and lawyers should not assume that communications with clients, opposing counsel, and others or even within their own law firm are protected from disclosure.

Errors made by lawyers in e-mails include inadvertently sending an e-mail with confidential information to the wrong recipient, copying the client on an e-mail to opposing counsel and receiving a reply all response, or otherwise using words in an e-mail which will negatively impact a client matter (or the lawyer’s reputation).  E-mails are also available in electronic form for all time.

With that in mind, the following are some tips regarding lawyer e-mail communications:

Before sending an e-mail, consider communicating by telephone or in person, which may be more effective than using e-mail.

Do not respond immediately to an e-mail that upsets you and/or that you believe attacks you or your client.  Always wait to calm down and compose your thoughts and also consider having a colleague in your law firm review the e-mail before sending it.

If you ultimately decide to send an e-mail, be sure to carefully review it before pressing “send.” Use the spell checker and complete the “to” and “cc” lines after you finalize the e-mail.

Always use professional language and do not try to make jokes, which may be misinterpreted by the recipient and/or interpreted differently in an investigation or legal proceeding.

Avoid the use of all capital letters (which may be interpreted as yelling), excessive exclamation points, abbreviations, and emoticons, which also may be wrongly interpreted by the recipient and/or in another context.

Before sending an e-mail, always confirm that the e-mail is addressed to the right recipient (and correctly copied to others) before sending it, particularly if contains confidential or sensitive information and the autocomplete feature can complete the wrong e-mail address.  Better yet, just turn off the autocomplete function.

Be careful using “reply all.”  E-mails that are meant for only one recipient may be sent to all recipients and potentially disclose information that should not have been shared.

Be careful using the “bcc” (blind copy) function and use it sparingly and judiciously.  A “bcc” recipient (including the client) can and sometimes will hit “reply all,” letting everyone know that he or she was blind copied and also potentially making comments that are embarrassing or inappropriate.  New York Bar Association Ethics Opinion 1076 (December 8, 2015) discusses the perils of copying the client and others and advises lawyers not to “bcc” clients on e-mails with opposing counsel.

If you are attaching a document, always confirm that it is the correct document. Sending the wrong document with confidential information in an attachment can have serious consequences.

Finally, when communicating with clients by e-mail, the lawyer should take steps to insure that confidential and privileged information remains within the attorney-client relationship, which can include specifically advising clients not to forward e-mails or other documents to third parties.

Bottom line:  E-mails are certainly a part of our daily lives, both personally and as lawyers.  These are some tips to avoid the professional risks involved in sending e-mails.

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 34683

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 Ethics Opinion 493 addresses Model Rule 8.4(g) prohibiting harassment and discrimination based upon, inter alia, race, sex, religion, national origin, and sexual orientation

Hello everyone and welcome to this Ethics Alert, which will discuss the (very) recent (July 15, 2020) American Bar Association Formal Opinion 493 titled “Model Rule 8.4(g): Purpose, Scope, and Application”, which provides guidance on application of the rule prohibiting harassment or discrimination “on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Formal Opinion 493 here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-493.pdf

The lengthy and expansive formal opinion provides guidance on the purpose, scope, and application of ABA Model Rule 8.4(g). The Rule specifically prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of the listed categories.

The formal opinion states that a potential violation of the rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.

ABA Model Rule 8.4(g) is below:

It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The formal opinion also states that ABA Model Rule 8.4(g) applies to conduct and comments related to the practice of law that occur outside the representation of a client and even outside of the courtroom.  The rule is also not restricted to severe or pervasive conduct, which is the standard used in the employment context.  Further, the conduct that violates paragraph (g) will often be intentional and may be targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.

According to the formal opinion, the Model Rule does not prohibit a lawyer from freely expressing opinions and ideas on matters of public concern or limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not from the basis of a rule violation.  Further, the Model Rules are rules of reason, and whether the lawyer’s conduct violates the rules must be judged in the factual context and by using an objectively reasonable standard.

The formal opinion concludes:  “Besides being advocates and counselors, lawyers also serve a broader public role. Lawyers “should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.  Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.“

Bottom line:  The ABA Model Rule 8.4(g), (which is not binding on lawyers) states that lawyers are not prohibited from freely expressing opinions and ideas; however, since lawyers serve a broader public role and are also officers of the court , they must be aware of their public (and potentially private comments) and not make comments which may be considered to be harassment or discrimination on the basis of the listed categories.  As always, lawyers should consult with their jurisdiction’s disciplinary rules for the language in those rules (if any).

Florida lawyers should be aware that Florida Bar Rule 4-8.4(d) has language prohibiting a lawyer’s conduct that is more restrictive and which also expands the categories of conduct which would be considered to be a potential violation of that rule.

Florida Bar Rule 4-8.4(d) is below:

A lawyer shall not: (d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.

Stay safe and 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.

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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Pennsylvania lawyer disbarred after secretly referring his law firm’s clients to outside lawyers

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Pennsylvania Supreme Court Order disbarring a lawyer after his conviction for defrauding his law firm out of $3.4 million by secretly referring its personal injury clients to outside lawyers for a percentage of the fees that were generated in the matters.  The case is Office of Disciplinary Counsel v. Neil I. Mittin, No. 2669.  The June 11, 2020 Pennsylvania Supreme Court Order disbarring the lawyer on consent and the lawyer’s Disciplinary Resignation are here:  http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/187DB2019-Mittin.pdf

The lawyer was admitted to practice in Pennsylvania 1979 and had practiced law at the law firm where he was a named partner for 38 years. The lawyer pled guilty to mail fraud in September 2019 and was sentenced to five years in prison in March 2020.  He was alleged to have defrauded law firm out of more than $4 million in legal fees; however, the Court awarded $3.4 million in restitution when he pled guilty to the criminal charges.

The lawyer was alleged to have intercepted numerous personal injury and other legal matters from the law firm and then referred to outside attorneys.  The lawyer allegedly hid the scheme from his law firm by making it appear there were no settlements or resolutions and that cases were not viable and then referring the cases to other lawyers, who would represent the clients through settlements or trials, prosecutors said.

If the cases were resolved successfully, the lawyers paid a referral fee between 33% and 40% of the contingency fees and reimbursement for costs incurred by the lawyer’s firm before the cases were referred.

Bottom line: This was a million dollar scheme to defraud a law firm by a member of that same law firm, who had worked there for 38 years and was a named partner.  It doesn’t get much more greedy than that.

Stay safe 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.

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer bad conduct, Lawyer conduct adversely affecting fitness to practice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer stealing from law firm, misrepresentations, Uncategorized

ABA Formal Ethics Opinion 492 addresses lawyer’s obligations to prospective clients after obtaining “significantly harmful” information

Hello everyone and welcome to this Ethics Alert, which will discuss the recent American Bar Association (ABA) Formal Ethics Opinion 492, which addresses the obligations of lawyers to prospective clients, including confidentiality, and conflicts of interest, including potential disqualifying conflicts after the lawyer obtains “significantly harmful” information.  The link to ABA Formal Opinion 492 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-492.pdf

The ABA issued Formal Ethics Opinion 492 on June 9, 2020.  The opinion addresses a lawyer’s obligations to prospective client and discusses who is a “prospective client”, the obligation to protect confidential information, disqualifying conflicts because of the acquisition of “significantly harmful” information, and limiting information during an initial consultation and avoiding the imputation of conflicts to the firm.

“A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter.

“Model Rule 1.18(b) imposes a duty of confidentiality with respect to information learned during a consultation, even when no client-lawyer relationship ensues. It provides: Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.”

“Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).”

The opinion concludes that a lawyer who receives information from a prospective client that could be “significantly harmful” and then represents a client in the same or a substantially related matter where that client’s interests are materially adverse to those of the prospective client would violate Model Rule 1.18(c) unless the conflict is waived by the prospective client.

Bottom line:  This opinion provides detailed information to assist lawyers in analyzing ethics issues that may arise related to prospective clients when the lawyer obtains “significantly harmful” information and provides guidance on how to identify and address those issues and comply with the lawyer’s ethical obligations.

Stay safe 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.

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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Filed under ABA Model Rules, ABA Opinion 492- prospective clients and "significantly harmful" information, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Privilege, Prospective clients conflict of interest, Uncategorized

Two Texas lawyers arrested on conspiracy to commit murder charges in alleged plot to kill another lawyer

Hello everyone and welcome to this Ethics Alert, which will discuss the recent arrest of two lawyers in Waco, Texas, on charges of felony conspiracy to commit capital murder in an alleged plot to kill another attorney.

According to media reports, the lawyers include a well-known criminal defense lawyer in Waco, Texas and an associate lawyer who works at his firm.  The lawyers allegedly tried to hire a contract killer to carry the murder of the associate’s  former husband, who is also a lawyer.  The former husband was arrested in February 2020 and charged with improper sexual contact with a 10-year-old female family member in December 2019.

The alleged contract killer was actually an undercover police officer, who apparently infiltrated the motorcycle club in which the criminal defense lawyer was a founder and president.  The law enforcement arrest affidavit allege that the criminal defense lawyer solicited the undercover officer to kill the former husband on May 14, 2020 and allegedly offered the officer $300.00 to buy a gun and stated he would help him leave town after the killing.

On May 21, 2020, the lawyers allegedly met with the undercover officer, instructed him to kill the former husband at his home, and gave him the $300.00 to buy the gun.  The arrest affidavits do not specify how much the lawyers offered to pay for the contract killing or why they wanted him killed. The lawyers were released from jail after each posting $1 million bonds.

Bottom line:  This is another very bizarre story involving lawyers.  These lawyers apparently decided to hire a contract killer to murder the former husband, who is accused of improper sexual contact with a 10-year-old female family member, instead of allowing the judicial system to run its course.

Stay safe and healthy 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.

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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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer bad conduct, Lawyer criminal conduct, Lawyer criminal misconduct murder for hire, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

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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Filed under ABA Formal Opinion 479 former client confidentiality, Attorney discipline, Attorney Ethics, Attorney misrepresentation, attorney-client privilege, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Confidentiality, Confidentiality and privilege, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer communication over internet- confidentiality, lawyer confidentiality, Lawyer derogatory remarks, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics responding to negative online review complaint confidentiality, Lawyer false statements, Lawyer negative Yelp review of client- confidentiality, Lawyer sanctions, Lawyers and social media, misrepresentations, Uncategorized

ABA Formal Opinion 491 discusses a lawyer’s obligation to avoid counseling or assisting a client in a crime or fraud

Hello everyone and welcome to this Ethics Alert, which will discuss recent ABA  Formal Opinion 491 (issued 4/29/20), which discusses and provides guidance regarding a lawyer’s obligation to avoid counseling or assisting in crime or fraud in non-litigation settings.  The opinion is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-491.pdf

The opinion states:  “ABA Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in a transaction or other non-litigation matter the lawyer ‘knows’ is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness or conscious disregard of available facts.”

“Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish ‘knowledge’ under Rule 1.2(d), other rules may require further inquiry to help the client avoid crime or fraud, to advance the client’s legitimate interests, and to avoid professional misconduct. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4.”

“A lawyer’s reasonable evaluation after that inquiry based on information reasonably available at the time does not violate the rules. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.”

The opinion concludes that: “where there is a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer must inquire further to avoid advising or assisting such activity” and “(i)f the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16.”

Bottom line:  This ABA opinion states that, in order to comply with the lawyer’s obligations under ABA Rule 1.2(d) (which is substantial similar to Florida Bar Rule 4-1.2(d), if there is “a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity”, the lawyer cannot engage in “willful blindness or conscious disregard of available facts” and the lawyer “must inquire further to avoid advising or assisting such activity.

Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

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jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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