Category Archives: Attorney/client privilege and confidentiality

Arizona lawyer disbarred upon consent for disparaging book about his client Jodi Arias which violated client confidentiality

Hello everyone and welcome to this Ethics Alert which will discuss the recent disbarment of an Arizona lawyer who represented notorious murder defendant Jodi Arias and published a book with disparaging details about the representation and revealing attorney/client confidential information without the consent of the client.  The case is In the Matter of Laurence K. Nurmi, Case No. PDJ-2016-9115.

The lawyer began representing Jodi Arias as an assistant public defender.  She was charged in the lurid and violent murder of her boyfriend in Arizona in 2008 and was found guilty of first degree murder in May 2013; however, the jury was unable to reach a unanimous decision on whether to sentence her to death.

Another sentencing hearing was held in the fall of 2014 and that jury voted 11-1 to sentence Arias to death.  The death penalty vote must be unanimous in Arizona and Arias was subsequently sentenced to life in prison in April 2015.  She has appealed the verdict and sentence.

Sometime in 2015, the lawyer began writing a book detailing his representation of Arias without written/oral permission or authority from Arias to publish or disseminate any information related to the representation.  According to the allegations, the book presents a negative view of Arias and the case.  The lawyer’s self-published book, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial (Volume 1), was released in 2015.

The book includes multiple confidential discussions between the lawyer, Arias, and her family. The book also provides details of the case, makes disparaging remarks, and makes several statements regarding the substance of witness interviews and inadmissible exhibits.  The lawyer also continued to disclose and explain certain facts and circumstances in the book related to his representation of Arias in promotional radio interviews.

In October 2016, the State Bar of Arizona filed a formal complaint against the lawyer for revealing attorney-client confidential information about Arias and her case in the book.  The lawyer attempted to settle the case with a 4 year suspension; however, Jodi Arias objected to that sanction.

Immediately after the announcement of the consent agreement, the Maricopa County public defender, James Haas, objected to the Arizona Bar because the agreement did not specifically order the lawyer to stop violating ethical rules with regard to the Arias case, including revealing confidential information, since the book was listed as one of 3 volumes.

The lawyer filed a request for disbarment on November 14, 2016.  The presiding disciplinary judge accepted the lawyer’s request on November 21, 2016 and issued an order making the disbarment effective the same day.

Bottom line:  This lawyer chose to write a book in a highly publicized and lurid case which disparaged his client and revealed attorney/client confidential information, including conversations with her and her family and disparaging comments.  Aria’s conviction is currently on appeal and it has been alleged that information in the book may jeopardize that appeal.

All lawyers should be aware that, unless the client provides informed consent, a lawyer is strictly prohibited from revealing attorney/client confidential information, even after the representation has been concluded.

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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Lawyer-Client Confidentiality and Privilege: What is the Difference?

This Ethics Alert blog will discuss the terms lawyer-client confidentiality and lawyer-client privilege are often used interchangeably and the differences between them may become somewhat blurred.  Although both terms address information related to the client that a lawyer cannot reveal and both are used primarily to protect the client’s ability to confide freely with the lawyer, they are not synonymous.  There are several significant differences with regard to their scope, exceptions, and application.

The primary ethics rule addressing lawyer-client confidentiality in Florida Bar Rule 4-1.6, which is substantially similar to ABA Model Rule 1.6.  The Comment states that “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…” A violation of the Bar rule may result in disciplinary sanctions.

Absent an exception, confidential information remains confidential during the representation and after the client dies.  The lawyer should not reveal confidential information if it will injure the client’s interests (absent an exception or legal compulsion), and it should only be disclosed to advance those interests.

A client may give informed consent for the lawyer to reveal confidential information or information that is protected by the privilege and consent may be implied under certain circumstances.  The client must give consent to the waiver of confidentiality; however, the privilege may be inadvertently and impliedly waived by the failure to object to testimony about the privileged communications.

In contrast to privilege, the lawyer’s ethical duties regarding confidentiality are much more extensive in scope and application, particularly as to what information is protected.  Confidentiality applies not only to information received from the client but all information related to the representation, regardless of whether the information came from the client or another source.  In addition, confidentiality applies in all situations, not just in litigation.

The lawyer-client privilege is a litigation concept that arose from the principles of evidence. In Florida, the privilege is set forth in F.S. 90.502.  The client, or someone acting legally for the client, may claim the privilege, typically through the lawyer.  F.S. 90.502(e) states that a lawyer is presumed to have the authority to assert the privilege on behalf of the client.  The privilege only protects communications between the client and lawyer in a litigation context, the communications are not protected if available from another source, and the communications are not necessarily protected simply because of the communication to the lawyer.  The Comment to Bar Rule 4-1.6 states “(t)he attorney-client privilege and work-product doctrine apply in judicial and other proceedings…”

The “crime-fraud” exception to the privilege in F.S. 90.502(4)(a) permits the disclosure of information communicated to the lawyer if the client attempts to use the lawyer’s services to commit or cover up a crime or fraud.

Florida Bar Rule 4-1.6(b) requires disclosure of confidential information to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another.  This mandatory exception is different from the crime-fraud exception to privilege in that it requires the threat of substantial injury or death to require that the information be revealed.  There are other exceptions under Bar Rule 4-1.6(c) which permit (but do not require) disclosure by the lawyer.

Even if information is not covered by privilege, it may still be confidential.  Depending on the circumstances, a lawyer may also be compelled to reveal the information regardless of whether it is privileged or confidential.

Bottom line:  Although the use of the terms “lawyer-client confidentiality” and “lawyer-client privilege may often be used interchangeably, they are very different in concept, scope, and application.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice 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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Washington D.C. lawyer receives informal admonition for revealing client confidences in response to client’s negative website comments

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent informal admonishment of a Washington D.C. lawyer who responded to a client’s negative and critical comments and revealed confidential and specific information about her case, her emotional state, and confidential details about the attorney-client relationship.  The disciplinary case is In re John P. Mahoney, Bar Docket No. 2015-D141 and the ODC’s informal admonition letter is here: http://www.dcbar.org/discipline/informal_admonition/20150609Mahoney.pdf.

The D.C. Office of Disciplinary Counsel (ODC) sent the lawyer a letter dated June 9, 2016 stating that the his internet response to a client’s complaint violated D.C. Bar Rule 1.6 since it revealed attorney/client confidential information and there was no exception to the rule allowing the lawyer to reveal the confidences.  Further, the lawyer violated D.C. Bar Rule 8.4(c)  “when (he) posted a further response on the website concerning Disciplinary Counsel’s investigation of the client’s allegations and Disciplinary Counsel’s statements.”  According to the letter, the lawyer’s claim that he had been “cleared” of the charges in the complaint “was, at best, misleading…”.

The ODC letter states:

The client’s principal complaint was that your fees were excessive. She claimed that she had prepared most of the documents you submitted on her behalf and you billed her an inordinate number of hours to proof or edit the documents, but did not advise her that a concise account of the discrimination she suffered would suffice. She further alleged that the expenses you charged were unwarranted and unnecessary. The client also was critical of your representation of her during the mediation, including the settlement demand that you made on her behalf. She claimed that you were verbally abusive, leading to her terminating the relationship.

After the attorney-client relationship ended, the client posted comments about you on a website in which she was highly critical of you and the representation you provided. You responded to her comments and, in doing so, revealed specific information about her case, her emotional state, and what transpired during your attorney-client relationship – although you did not identify the client by name.

The letter found that there was no misconduct found in the lawyer’s underlying representation of the client.  Under the D.C. Bar rules, since the lawyer did not submit a written request for a hearing within 14 days of the ODC letter, the informal admonition constitutes final discipline.  The lawyer must also complete three hours of CLE related to a lawyer’s confidentiality obligations.

Bottom line:  This lawyer responded to what he believed were false allegations by a client on a public website and provided attorney/client confidential information in defending himself.  Unfortunately, responding  to internet allegations is not one of the exceptions to the Bar confidentiality rules (Rule 4-1.6 in Florida) which permits a lawyer to reveal client confidences.

As I have stated in my earlier blogs on this topic, in our digital/instant communication brave new world, it is much too easy to react quickly and badly to a  perceived slight, such as a bad client internet review.  Before responding to any internet postings, a lawyer must seriously consider the ethical implications and not act impulsively and reveal confidential information, which may result in a Bar investigation and potential sanctions.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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New York State Bar ethics opinion addresses ethics issues when a lawyer copies a client with communications to opposing counsel

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York State Bar Association Ethics Opinion addressing ethics issues related to a lawyer sending correspondence to opposing counsel and copying the client.  The Ethics Opinion is NYSBA Ethics Op. 1076 (Dec. 2015) and the opinion is here:  http://www.nysba.org/CustomTemplates/Content.aspx?id=60757

The opinion specifically addresses whether a lawyer must obtain the consent of opposing counsel before he or she can blind copy the client on correspondence to opposing counsel. The opinion states that “(t)wo opposing lawyers do not have a relationship of confidentiality.   Consequently, a lawyer who receives correspondence from opposing counsel is not obligated under the Rules of Professional Conduct (the “Rules”) to maintain the confidentiality of those communications.  A lawyer does not need the ‘consent’ of opposing counsel to send the client copies of correspondence between the inquirer and opposing counsel.  Since a lawyer is an agent of the lawyer’s client, opposing counsel should expect that the lawyer may share correspondence relating to the representation with the client.”

The opinion also states that the lawyer does not engage in “dishonesty, fraud, deceit or misrepresentation” when he or she send the client copies of correspondence with opposing counsel.  The opinion noted that sending the client copies of communications with opposing counsel may be the easiest way for the lawyer to comply with his or her duties under the Bar rules to keep the client reasonably informed about the status of the matter as well as the lawyer’s duty to provide the client with information that is reasonably necessary for the client to make informed decisions about the representation.

The opinion cautioned that copying or blind copying the client on e-mails with opposing counsel is not the best practice and provided a list of reasons not to copy or blind copy the client, which are below:

Reasons Not to Use Either “cc:” or “bcc:” When Copying e-mails to the Client

Although it is not deceptive for a lawyer to send to his or her client blind copies of  communications with opposing counsel, there are other reasons why use of the either “cc:” or “bcc:” when e-mailing the client is not a best practice.

As noted above, “cc:” risks disclosing the client’s e-mail address.  It also could be deemed by opposing counsel to be an invitation to send communications to the inquirer’s client.   But see Rule 4.2, Cmt. [3] (Rule 4.2(a) applies even though the represented party initiates or consents to the communication).

Although sending the client a “bcc:” may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.”  For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation,  the inquirer bccs his or her client, and the client hits “reply all” when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6.  See Charm v. Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would respond without “tak[ing] careful note of the list of addressees to which he directed his reply”).

Bottom line:  Many lawyers copy or blind copy the client with e-mails to opposing counsel (and others).  Although it may take additional time, the best practice would be to send a separate e-mail to the client or forward the e-mail to the client after it has been sent.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice 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.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Illinois lawyer censured for settling deceased client’s injury case without informing court or opposing counsel of the death

Hello and welcome to this Ethics Alert which will discuss the recent censure of an Illinois lawyer for settling a deceased client’s personal injury case without informing court or opposing counsel of the client’s death.  The case is In the Matter of: Anthony Patrick Gilbreth, No. 6289576, Commission No. 2015PR00100 (Ill. SC May 18, 2016).  The summary of the censure is here: http://www.illinoiscourts.gov/supremecourt/Announce/2016/051816.pdf.

The lawyer’s law firm filed a lawsuit against Orthotic & Prosthetic Lab (O&P) on behalf of a client in 2008 which alleged that a prosthesis that O&P had designed, manufactured, and sold had failed.  The client subsequently died in January 2013 and, in August 2013, his son was appointed administrator of the estate.  In September 2013, O&P offered to settle the case for $110,000.00.  The lawyer responded and stated that his client had instructed him to accept it.

The Illinois Attorney Registration and Disciplinary Commission’s (ARDC) petition for discipline states: “At the time of the settlement, defense counsel was unaware because (the lawyer) had not told him that (the client) had died.” “(The lawyer) withheld the fact of (the client’s) in part because he knew that (the client’s) death would reduce the value of any claim for damages.  (The lawyer) also felt that it would be improper to reveal (the client’s) death because (the lawyer)  thought that information was confidential under Rule 1.6 of the Illinois Rules of Professional Conduct, and its revelation would harm his former client’s claim. (The lawyer) did research the issue and discussed it with other attorneys in his firm, but did not research ARDC case precedent, discussed infra, in which attorneys have been disciplined for failure to disclose his or her client’s death under similar circumstances.”

According to the petition for discipline, on November 15, 2013, the lawyer sent defense counsel an amended release and informed him that the client had died and that the client’s son had been appointed administrator of the estate.  Defense counsel responded by informing the lawyer that the settlement (which had not yet been paid) was no longer valid. The trial court allowed the client’s son to substitute in as plaintiff on January 21, 2014, and granted the lawyer’s motion to enforce the settlement agreement. The defendant appealed and the appeals court vacated the trial court’s order enforcing the settlement.

The appeals court found that, since the client had died, there was no plaintiff on the date of the purported agreement to settle the case and also that the lawyer’s arguments for concealing the death of his client to be “specious and incredible.”  The appeals court also stated: “in failing to disclose the fact of the plaintiff’s death, Mr. Gilbreth intentionally concealed a material fact that would have reduced the overall value of the claim for damages.”  The court remanded the case to the trial court and, as of the date the parties filed the joint motion to approve the petition to impose discipline on consent, the case filed on behalf of the client remained pending. The lawyer’s Answer to the disciplinary charges is here:  http://www.illinoiscourts.gov/supremecourt/Announce/2016/051816.pdf.

The petition for discipline stated, in mitigation, that the lawyer had not been disciplined since his 2006 admission to practice.  In addition, five lawyers, a reverend from Columbia, and a judge would testify that the lawyer has a good reputation for truth and veracity, the lawyer was cooperative in the disciplinary proceedings, and was remorseful for his conduct.  In aggravation, the petition stated that the lawyer’s “actions in attempting to enforce the settlement, even after being supplied with controlling precedent, caused the defendant to incur the expenses of an appeal to obtain a ruling that the settlement was invalid.”  The ARDC petition for discipline is here: https://www.iardc.org/rd_database/rulesdecisions.html  (type in lawyer’s name).

Bottom line:  This Illinois disciplinary case illustrates the paramount importance of candor in a lawyer’s representation of a client.  The lawyer believed that the information related to the death of the client was confidential; however, the appellate court decision found that the lawyer’s duty of candor supersedes attorney/client confidentiality.

Be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, 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.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

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ABA issues formal ethics opinion addressing lawyer’s duties upon receipt of subpoena or other process for client confidential documents

Hello and welcome to this Ethics Alert blog which will discuss the recent American Bar Association Formal Opinion 473, which provides guidance to lawyers regarding ethical duties and obligations under the Model Rules upon receipt of a subpoena or other compulsory process for client documents and information.  ABA Formal Opinion 473 (February 17, 2016) is here: http://www.americanbar.org/content/dam/aba/images/abanews/FormalOpinion_473.pdf.

According to the opinion, the ABA Standing Committee on Ethics and Professional Responsibility was asked to review ABA Formal Opinion 94-385 (July 5, 1994) regarding a subpoena for a lawyer’s client files since ABA Model Rule 1.6(b)(6) was adopted in 2002 and which states that: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law or court order.”

When Formal Opinion 94-385 was issued, Model Rule 1.6(b) specifically required a lawyer to disclose confidential information in only two situations: (i) to prevent certain crimes, and (ii) to establish certain claims or defenses on behalf of the lawyer.  Formal Opinion 94-385 advised that the lawyer “must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about a client.”

The opinion states that the model rule and Formal Opinion 94-385 do not address “complex, critical, and fact-intensive questions on how to respond” when the lawyer receives a subpoena or other process which is not a “final order of a court or other tribunal”.  The opinion addresses these issues and provides guidance to lawyers regarding their duties and obligations.  The opinion states that a lawyer who receives a subpoena or other compulsory process (but not a court order) for documents or information relating to the representation of a client (which is, of course, confidential) has multiple ethical duties and obligations, including:

  1. The lawyer “must notify—or attempt to notify—the client.  For former clients, the lawyer must make reasonable efforts to reach the client by, for example, internet search, phone call, fax, email or other electronic communications, and letter to the client’s last known address.”
  1. If the client is available, the lawyer must consult with the client about how to respond. If instructed by the client (or if the client is unavailable), the lawyer must assert all reasonable claims against disclosure and seek to limit the subpoena or other initial demand on any reasonable ground.  Such a consultation should include a discussion regarding the applicability of the attorney-client privilege, the work-product doctrine, and the Fifth Amendment privilege against self-incrimination.
  1. If the client wants to challenge the subpoena or process, the lawyer should challenge “on any reasonable ground.”  If that challenge fails, the lawyer should consult with the client about appeal options.
  1. If there is an order to disclose confidential or privileged information and the client is available, a lawyer must consult with the client about whether to produce the information or appeal the order.
  1. The lawyer should seek appropriate protective orders or other protective arrangements so that access to the information is limited to the court or other tribunal ordering its disclosure and to persons having a need to know.
  1. If the lawyer discloses documents and information, whether it is in response to a demand or an order, and regardless of whether client is available, the lawyer may reveal information only to the extent reasonably necessary.
  1. If the client and the lawyer disagree about how to respond to the initial demand or to an order requiring disclosure, the lawyer should consider withdrawing from the representation pursuant to Model Rule 1.16.
  1. If the lawyer is unable to find the client, the lawyer must “assert all reasonable objections and claims when the lawyer receives the initial demand.” If those “objections and claims” are rejected by the tribunal, the lawyer must produce the information to the extent reasonably necessary to comply with the order; however, the lawyer “is not ethically required to take an appeal on behalf of a client whom the lawyer cannot locate after due diligence.
  1. If there is an order to disclose and the client is unavailable, the lawyer is not ethically required to appeal.

With regard to fees for the consultation and services regarding the response to the subpoena/process, the lawyer should consult with the client regarding whether responding to the demand was included in the scope of work under the fee agreement.  If not, the lawyer should discuss the fee for doing so.  Regardless, the lawyer may still “be required to challenge the initial demand” under the ethics rules even if the services were not included in the initial fee agreement.  The opinion states that a lawyer “should consider” providing for this circumstance in the lawyer’s retainer agreements.

Bottom line: This ABA Formal Opinion provides guidance regarding issues involving client confidentiality which lawyers confront fairly frequently and that I frequently address in my ethics presentations.  The opinion’s guidance is important and should be considered by lawyers who receive a subpoena or process demanding client confidential information, regardless of whether the lawyer’s jurisdiction’s ethics rules include the specific language in Model Rule 1.6(b)(6).

Note to Florida lawyers:  Florida Bar Rule 4-1.6 does not include the specific language in ABA Model Rule 1.6(b)(6) that: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law or court order”; however, Florida Bar Rule 4-1.6(d) states that: “When required by a tribunal to reveal confidential information, a lawyer may first exhaust all appellate remedies.”  In addition, Florida Bar Rule 4-1.6(f) states that: “When disclosure is mandated or permitted, the lawyer must disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.”

The ethical duties and obligations regarding subpoenas and other process addressed in the opinion should apply to Florida lawyers upon receipt of a subpoena or other process to provide confidential documents/information.

Be careful out there!

If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, 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.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

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Missouri lawyer alleged to have used payroll document and opposing counsel’s written direct exam questions from e-mails hacked by client

Hello and welcome to this Ethics Alert blog which will discuss the disciplinary case against a Missouri lawyer who is alleged to have used a payroll document and direct examination questions of opposing counsel which were obtained by the client/ex-husband by hacking the wife’s e-mail account.  The disciplinary counsel’s brief is here: Disciplinary Counsel Brief.

According to the brief, the lawyer’s client (the husband in a divorce proceeding) provided the lawyer with two documents that the client had obtained by hacking the wife’s e-mail account.  The documents included a payroll document showing the wife’s recent salary and distribution document and a list of direct examination questions prepared by the wife’s attorney for the divorce trial.  The lawyer allegedly used the payroll document information during a settlement conference in July 2013 without disclosing that he had possession of it.

On February 11, 2014, the second day of trial, the list of the direct examination questions was included in a stack of exhibits provided by the lawyer in the courtroom and opposing counsel learned that the lawyer had the document for the first time.  When opposing counsel asked the lawyer why he had possession the list, he replied (apparently flippantly) that it contained a lot of leading questions and he planned to object to them.  The lawyer later stated that his paralegal had included the questions in the stack of exhibits and that he was joking when he made the remark about the leading questions.

In a conference held in the judge’s chambers the same day, the lawyer initially said that he had not seen the list of direct examination questions before that day; however, he later admitted he had seen the list of questions but claimed that he did not read the document.  The lawyer’s client admitted under oath that he had obtained the documents by accessing his wife’s personal e-mail account without her permission and that he had provided the documents to the lawyer.

According to the brief: “When questioned about his statement under oath on February 11, 2014, ‘that at some point in time [he] had read the first portion of that and realized that it was verboten, it was something that [he] should not have,’ Respondent testified that when he said ‘at some point in time’ he meant ‘that day’ in court when Jones confronted him with the list.”

The brief outlines the lawyer’s prior disciplinary record, which includes:

March 9, 1991 admonishment for communicating ex parte with the judge on two occasions during the pendency of a lawsuit in violation of Rule 4-3.5(b).

June 17, 1997 suspension with leave to apply for reinstatement not sooner than six (6) months as a result of a guilty plea in the U.S. District Court for the Eastern District of Missouri to the misdemeanor of willfully failing to submit an Income Tax Return.

November 2, 1999 admonishment for communicating ex parte with the judge during the pendency of a lawsuit in violation of Rule 4-3.5(b.

January 18, 2001 admonishment for failing to respond to the OCDC on three occasions for requests for information regarding an ethics complaint in violation of Rule 4-8.1(b).

July 6, 2004 admonishment for a Rule 4-3.3(d) violation for “failing to inform the tribunal in an ex parte proceeding of all material facts known to the lawyer enabling the tribunal to make an informed decision, whether or not the facts are adverse. Specifically: ‘When asked by Judge Dildine of Lincoln County what the exigent circumstances were that required his signature on a consent order presented by Respondent, Respondent replied that it was necessary to get the minor child at issue on a health insurance policy. The statement to the Court was inconsistent with Respondent’s testimony before the Division IV Committee wherein he stated that obtaining the judge’s signature on the order was necessary in order that Respondent’s clients regain custody of the minor child from parties whom his clients considered inappropriate.’”

The brief also alleges that the lawyer threatened opposing counsel regarding her “gossip” about the matter.  The disciplinary counsel’s brief seeks an indefinite suspension with no leave to apply for reinstatement until after 12 months.  The Missouri Supreme Court is scheduled to hear oral arguments on the case this month.

Bottom line: If the facts in the brief are true, this is a rather egregious case of a lawyer acting unethically.  The lawyer was (or should have been) aware that the documents were obtained by the client improperly and without the wife’s permission and, compounding the misconduct, the lawyer failed to advise opposing counsel that he had received the improperly obtained privileged and confidential documents (as is required in most, if not all jurisdictions).  The lawyer also used the payroll document against the wife in a mediation and may have arguably been planning to use the direct examination questions without opposing counsel’s knowledge until the paralegal included the document with the copies of exhibits apparently by mistake.

Be careful out there and don’t do this (if it is true)!

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice 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.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, lawyer confidentiality, Lawyer discipline, Lawyer disruptive litigation conduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper use of confidential privileged documents, Lawyer sanctions