Category Archives: Communication with clients

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism

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

www.jac-law.com

 

 

 

 

 

 

 

2 Comments

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

Colorado lawyer suspended for 18 months for disclosing confidential information in response to client internet criticism

Hello everyone and welcome to this Ethics Alert which will discuss the recent disciplinary opinion suspending a Colorado lawyer for 18 months for disclosing confidential client information in response to their internet criticism.  The disciplinary opinion is People v. James C. Underhill Jr. Case No. 15PDJ040 (consolidated with 15PDJ044 and 15PDJ059) (August 12, 2015) and is here: http://www.coloradosupremecourt.us/PDJ/ConditionalAdmissions/Underhill,%20Conditional%20Admission%20of%20Misconduct,%2015PDJ040,%2015PDJ044,%2015PDJ059,%208-12-15.pdf.

The opinion approved the conditional admission of misconduct and suspended the lawyer from the practice of law for eighteen (18) months which will begin after his current suspension ends.  The lawyer admitted that he disclosed client confidential information in response to clients’ internet complaints about his fees or services in two client matters.

In the first matter, a married couple retained the lawyer to assist with the husband’s ongoing post-dissolution dispute with his former spouse. The clients could not pay all the fees up and the lawyer verbally agreed to monthly payments, with an initial $1,000.00 deposit; however, “he did not explain that he reserved the right to demand full payment at his sole discretion.  He collected an additional $200.00 for a ‘filing fee,’ though he took no action that required such a fee.”

The lawyer also “failed to adequately communicate with the clients and did not inform them of opposing counsel’s objections to their discovery responses. Underhill later threatened to withdraw in two business days unless the clients made full payment of all fees. When the couple terminated the representation, (lawyer) declined to refund the $200.00 ‘filing fee.’”

The clients posted complaints about the lawyer on two different websites. The lawyer responded with “internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.”  The lawyer then sued the couple for defamation and communicated directly with them, although “he knew that the couple had retained counsel, (lawyer) communicated with them ex parte on several occasions, even though their counsel repeatedly implored him not to do so.”  When that suit was dismissed, the lawyer filed a second defamation action in a different court, “alleging without adequate factual basis that the couple had made other defamatory internet postings.”

In a second matter, the lawyer represented a couple  to renegotiate a lease for their business. The couple eventually became dissatisfied with the lawyer’s services and terminated him. The clients posted a complaint about the lawyer on the Better Business Bureau’s website. The lawyer responded by providing an attorney-client communication and making “uncomplimentary observations about and accusations against the couple based on confidential information related to the representation.”

The lawyer’s 18 month suspension will begin after he serves a current suspension of 3 months and one day for communicating directly with his former clients who were represented by counsel while on disciplinary probation. That disciplinary order is here: http://www.coloradosupremecourt.us/PDJ/OpinionsAndSummaries/Underhill,%20Revocation%20of%20Probation,%2012PDJ071,%206-29-15.pdf.

The suspension takes effect on October 1, 2015.  After the suspension period, he must apply for reinstatement and prove by clear and convincing evidence that he has been rehabilitated, that he has complied with the disciplinary orders and rules, and that he is fit to practice law. 

The lawyer was also suspended for one year and one day for trust account violations in 2012.  That disciplinary order is here:  http://www.coloradosupremecourt.com/PDJ/ConditionalAdmissions/Underhill,%20Conditional%20Admission%20of%20Misconduct,%2012PDJ071,%2010-1-12.pdf

According to the Colorado Supreme Court’s website, the opinions of the Presiding Disciplinary Judge are final orders and may be appealed to the Supreme Court; however, since the opinion approved an agreed conditional admission of misconduct, it will not be appealed.

Bottom line: This is yet another cautionary tale for lawyers practicing in the digital age.  As all lawyers know, attorney/client confidences must be preserved unless the client authorizes disclosure (preferably be in writing) or there is an exception to the confidentiality rule, such as defending a Bar complaint or malpractice action.  A client’s criticism of the lawyer on internet websites is certainly not one of those exceptions and revealing confidential information in response to criticism on those platforms is a violation of the Bar rules.

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.

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

 

 

 

 

 

 

 

1 Comment

Filed under Attorney discipline, Attorney Ethics, Attorney/client privilege and confidentiality, Communication with clients, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer derogatory remarks, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer revealing client confidential information on internet, Lawyer sanctions, Lawyer technology competence

Florida Bar Statewide Advertising Committee finds that texts to prospective clients on specific matters are prohibited solicitations

Hello everyone and welcome to this Ethics Alert which will discuss the recent decision of the Florida Bar’s Statewide Advertising Committee to reject a plan by a law firm to obtain cell telephone numbers and send texts to prospective clients on specific matters since the text messages would be solicitations in violation of the Bar advertising rules.

The issue of whether a text message to a prospective client regarding a specific matter was recently reviewed by the Florida Bar’s Standing Committee on Advertising at its May 12, 2015 meeting.  The issue was reviewed after a criminal defense firm requested authorization to send text messages to prospective clients and guidance on its plan to use a computer system to send text messages regarding the firm’s legal services to potential clients who were arrested.  The law firm argued that a telephone number for text messaging is the functional equivalent of an e-mail address which are permitted communications under the Florida Bar Rules.

Florida Bar Advertising Rule 4-7.18 states that (with exceptions) a lawyer may not solicit professional employment from a prospective client by telephone or other communication directed to a specific recipient.  The Telephone Consumer Protection Act (TCPA) also prohibits telephone solicitations and the use of automated telephone equipment to send SMS text message and faxes.

The law firm’s plan was to use a daily list provide by the county clerk to obtain e-mail addresses and mobile telephone numbers of individuals arrested the previous day.  This information would be entered into an automated system which would send text messages offering its legal services.  The firm stated that it would only send a text if an e-mail was unavailable and that there would be an “opt out” provision to allow the recipient to decline future communication.

The Florida Bar Advertising Department’s lawyers had voted unanimously that the proposed text messages were prohibited and violated Rule 4-7.18 since text messages fall within the language of the rule’s prohibition against telephone communication and also since the proposal would likely violate the TCPA.  The law firm appealed the decision to the Florida Bar’s Standing Committee on Advertising.  The Standing Advertising Committee voted 6-1 against the proposal.  The law firm requested review by the Florida Bar’s Board of Governors and the review has been scheduled for the Board’s July 2015.

Bottom line:  This is another example of analysis and application of new digital media to the Bar advertising rules.  In this case, The Florida Bar’s Statewide Advertising Committee decided that text messages to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules.  Expect more of these reviews and issues in the future and stay tuned for the decision of the Board of Governors on this one.

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.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under 2013 Florida comprehensive advertising rule revisions, Advertising and solicitation with text messages, Attorney Ethics, Communication with clients, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

Georgia lawyer reprimanded for violating lawyer/client confidentiality in responding to client’s negative internet reviews

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Georgia Supreme Court disciplinary opinion which imposed a reprimand on a lawyer who violated attorney/client confidentiality in response to negative reviews that a client had made on internet “consumer Internet pages”. The opinion is In the Matter of Margrett A. Skinner, Case No. S14Y0661 (Ga. Supreme Court 5/19/14) and the disciplinary opinion is here: http://www.gasupreme.us/sc-op/pdf/s14y0661.pdf

According to the opinion, the lawyer submitted a petition for voluntary discipline for a review panel reprimand, which was rejected and a special master was assigned to conduct proceedings and hold proceedings and an evidentiary hearing. In his report, the special master found that a client retained the lawyer in July 2009 to represent her in an uncontested divorce, and paid $900.00, including $150.00 for the filing fee.

The client had no contact from the lawyer for six weeks and, after multiple attempts to contact the lawyer, the client was able to reach her in October 2009. The lawyer said that she had lost the documents that the client had given to her in July 2009. The lawyer and the client then met again and the lawyer then began to draft pleadings for the divorce. The initial drafts of the pleadings had multiple errors, and the lawyer and the client exchanged several drafts and communicated by e-mail about the status of the case in October and early November 2009. These communications ended by mid-November 2009 and there were no more communications until March 18, 2010, when the client told the lawyer that her husband would not sign the divorce papers without revisions.

There was a dispute over fees and expenses and the lawyer asked the client for an additional $185.00 for travel expenses and the filing fee. In April and early May 2010, the lawyer and the client exchanged e-mails about the request for additional fees and expenses. On May 18, 2010, the client told the lawyer that she had hired another lawyer and asked the lawyer to deliver her file to her new lawyer and refund $750.00. The lawyer said that she would not release the file unless she was paid. The lawyer eventually refunded $650.00 to the client; however, she never provided the file to the new lawyer, stating that it had only her “work product.” The new lawyer completed the divorce within three months of being retained.

The client then posted negative reviews of the lawyer on three “consumer Internet pages”. When the lawyer learned of the negative internet reviews, she posted an online response which contained personal and confidential information about the client which the lawyer had obtained in the course of the representation. The lawyer identified the client by name, identified the employer of the client, stated how much the client had paid, identified the county where the divorce had been filed, and stated that the client had a boyfriend.

The client subsequently filed a Bar complaint against. In her response in August 2011, the lawyer said that she would remove her posting from the internet; however, it was not removed until February 2012.

The special master held a hearing and found that the lawyer violated Georgia Bar Rule 1.4 (communication with client) when she failed to keep her client reasonably informed of the status of the divorce between July and October 2010, and Georgia Bar Rule 1.6 (confidentiality) when she disclosed confidential information about the client on the Internet. After discussing the underlying circumstances and mitigation, the special master recommended a public reprimand.

The disciplinary opinion stated “(i)n this case, the improper disclosure of confidential information was isolated and limited to a single client, it does not appear that the information worked or threatened substantial harm to the interests of the client, and there are significant mitigating circumstances.” The opinion imposed a public reprimand and required the lawyer to consult with the Georgia Bar’s Law Practice Management Program and implement any suggestions in her law practice.

Bottom line: As it is with personal digital/internet communication (including e-mail, texting, and facebook etc.), this is a clear example of how the internet can make it 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, which this lawyer apparently did.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog 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
http://www.jac-law.com

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing client confidential information on internet, Lawyer sanctions

Massachusetts Supreme Court imposes public reprimand on lawyer who lacked competence in electronic discovery and violated court order

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Massachusetts Supreme Court which adopted a stipulation and imposed a public reprimand on a lawyer whose “lack of experience in electronic discovery” resulted in the violation of a court order to preserve digital evidence.  The lawyer was found to have violated Massachusetts Bar Rules related to violation of an order of the tribunal, client communication and competence.  The opinion is Massachusetts Bar v. Reisman, No. 2013-21 (October 9, 2013).  The opinion is at: http://www.mass.gov/obcbbo/pr13-21.pdf

According to the opinion, the lawyer was hired to represent ASI and an employee of ASI in defending civil claims brought by the former employer of the employee and a competitor of ASI called NSA.  The employee had resigned from NSA effective September 29, 2006, and had begun employment with ASI on October 1, 2006.  Without NSA’s permission, the employee brought an NSA laptop computer to ASI that he had used in his employment at NSA.  Between October 1 and October 23, 2006, the employee transferred some files from the NSA laptop to an ASI laptop and then used a scrubbing program to delete all files from the NSA laptop and he returned it to NSA on October 23, 2006.

The trial court entered a temporary restraining order on November 15, 2006 which, inter alia, prohibited the employee from disposing of or using NSA trade secrets or confidential information.  The order also required the employee to return to NSA all information that he deleted from the NSA laptop and transferred to any other device. The employee denied that he had transferred any NSA information to any other device and the lawyer filed an answer and counterclaims on December 6, 2006 denying that any proprietary or other confidential information of NSA was uploaded and given to ASI.

On November 17, 2006, without the lawyer’s knowledge, the employee used a scrubbing program to delete some NSA files from the ASI computer.  On March 7, 2007, NSA’s counsel sent an e-mail to the lawyer e-mail that NSA would be filing a motion to gain access to his client’s computers and that the lawyer was required to inform the employee and ASI to preserve any documents “that relate to the case,” including any on the employee’s ASI laptop. The lawyer took no action and did not advise employee or his employer not to delete relevant files from the ASI laptop.

NSA filed a motion to compel production of ASI’s computers for forensic examination.  On April 12, 2007, again without the lawyer’s knowledge, but on the same day as a hearing on discovery issues, the employee used a scrubbing program to delete files from his ASI computer.  After the hearing on April 13, 2007, the trial court ordered that the hard drive be preserved and that NSA’s forensic expert be given access to the employee’s ASI computer.  After a further hearing on May 2, 2007, the trial court amended the order to allow the hard drive to be copied but to limit the expert’s examination of the copy to any NSA proprietary or confidential files copied to the computer in September or October 2006.

After the April 13, 2007 order, the employee told the lawyer that there were confidential documents and information on his laptop which was related to ASI and unrelated to NSA and which should not be disclosed to NSA or its expert.  The lawyer did not ask about the nature or content of the documents and he also apparently believed that the ASI confidential information was not relevant to the litigation; therefore, notwithstanding the court order, he advised the employee that he could scrub the confidential information from his laptop. 

Because of the lawyer’s “lack of experience in electronic discovery, (he) failed to appreciate that the order of April 13, 2007, required the entire hard drive to be preserved for the NSA expert, not just documents obtained from NSA.  The (lawyer) advised the employee that he should scrub files unrelated to NSA without first conferring with experienced counsel or conducting research as to his client’s legal obligations and without any attempt to confirm that the materials to be deleted were as represented.”  The day before the expert’s examination of the computer, the employee scrubbed additional files from the ASI computer. 

On December 6, 2007, after being advised of the series of deletions, the trial court issued a memorandum and order finding that the employee had engaged in spoliation of evidence.  The trial court declined to enter a default judgment against the employee, but granted additional discovery and access to the ASI computer for whatever additional analysis that the plaintiff could perform.  The lawyer then withdrew from the representation in October 2010 and another lawyer entered an appearance.

The lawyer and Massachusetts disciplinary board lawyer entered into a stipulation of facts and disciplinary violations and a joint recommendation for a public reprimand with attendance within one year at two CLE programs, one on electronic discovery and one on ethics and law office management.  The board accepted the parties’ recommendation and imposed a public reprimand subject to the conditions on September 23, 2013 and the opinion adopted the terms of the stipulation.

“The (lawyer’s) advice to his client scrub certain files from the hard drive of a laptop in contravention of a court order constituted unlawful obstruction of another party’s access to evidence, in violation of Mass. R. Prof. C. 3.4(a) (violate an order of a tribunal). The respondent’s failure to adequately communicate to his client his obligations under the court order and the potential prejudice of altering property subject to the court order was conduct in violation of Mass. R. Prof. C. 1.4 (communication).  Finally, the respondent’s conduct of handling a matter that he was not competent to handle without adequate research or associating with or conferring with experienced counsel, and without any attempt to confirm the nature and content of the proposed deletions, was conduct in violation of Mass. R. Prof. C. 1.1 (competence).”

In aggravation, “the (lawyer’s) condoning the alteration of the hard drive had the potential to prejudice the plaintiff’s pursuit of discovery, and the client was found to have engaged in spoliation. Much of the spoliation, however, took place prior to the respondent’s advice, and the trial court ultimately found that even assuming that client transferred confidential information to ACI, the plaintiff did not prove that the client’s conduct caused any damages to NSA.  In mitigation, the r(lawyer) was relatively inexperienced in the relevant area of discovery practice.”

Bottom line:  This lawyer may have been acting in good faith when he acquiesced to (or gave advice to the client to) scrub electronic files in violation of a court order; however, this case again illustrates how a lack of competence related to orders to preserve electronic and digital files can result in the discipline of a lawyer. 

Let’s be careful out there!

Disclaimer:  this e-mail 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

 

 

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Communication with clients, lawyer electronic discovery violation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions, Lawyer violation of court order

Florida Supreme Court rejects recommended 90 day suspension and imposes 1 year suspension for lawyer’s misconduct in immigration and malpractice matters

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida which rejected a referee’s recommended 90-day suspension as too lenient and imposed a one (1) year suspension for the lawyer’s serious misconduct in an immigration matter and in a subsequent malpractice suit.  The opinion is The Florida Bar v. Whitney, No. SC11-1135.  The opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1135.pdf 

According to the opinion, the referee found the following facts:  the client (Dr. Hill) hired the lawyer on January 19, 2004 to provide immigration and legal advice.  At the initial meeting, the lawyer was told that a Ms. de Oliveira (who was at the meeting) was a native of Brazil and was in the United States illegally for the third time and that she had received a letter from the United States Department of Justice banning her from the country for twenty years because of her two previous illegal entries. The lawyer was also told that the client intended to marry Ms. de Oliveira, but that they were not engaged and the client had only known her since November 2003 when she moved into his house.  Based upon the meeting, a fee agreement was prepared and executed with a flat fee of $15,000.00 and a $5,000.00 deposit for future costs.

The fee agreement provided that the lawyer would represent Ms. de Oliveira (not the client) “in regard to all matters pertaining to her immigration status” and that the lawyer’s obligations under the contract would terminate “upon decision of the Office of the Attorney General granting or denying permission for (Ms. de Oliveira) to reenter the United States.”  The client provided the lawyer with two checks, one dated January 26, 2004, in the amount of $10,000.00, and the other dated February 6, 2004, in the amount of $9,365.00 and also paid for an airline ticket for the lawyer to travel to Brazil.  The lawyer deposited both checks into his personal checking account and used the funds “to pay his personal bills because respondent was experiencing financial problems at the time.”

The lawyer traveled to Brazil twice in early 2004 to allegedly research the requirements for the client and Ms. de Oliveira to marry in Brazil; however, the referee found that this information was easily obtained without leaving the country. The lawyer claimed that one of the trips to Brazil was to obtain information on rental properties for Ms. de Oliveira and to verify her Brazilian documents.  Since the location that the lawyer found was in an area other than where Ms. de Oliveira lived in Brazil, the referee found that that the trip was for a purpose other than for the client’s case.  In September 2004, the lawyer took Ms. de Oliveira’s Brazilian passport, which she advised was a falsified document, and other original Brazilian documents. The referee found that the lawyer “took no further meaningful action with respect to Ms. de Oliveira’s immigration matter.”

The client contacted the lawyer in late 2004 or early 2005 after he had not received any communication since hiring him in January 2004.  The lawyer said that he had not initiated the process to have Ms. de Oliveira remain in the United States or to reenter legally so that they could be married in the United States, that Ms. de Oliveira needed to marry the client in Brazil, and that he would only proceed further after the client paid an additional fee of between $40,000.00 and $60,000.00.  The client then fired the lawyer and demanded a full refund of the fees and costs that he had paid and the return of Ms. de Oliveira’s documents.  The lawyer refused and stated that he had earned the fees and costs.  Ms. de Oliveira sent the lawyer a letter dated February 22, 2005 demanding the return of her original documents and the lawyer then complied with that request and Ms. de Oliveira returned to Brazil in or around April 2005.  The referee found that the lawyer failed to provide an accounting to the client upon his request and failed to timely return Ms. de Oliveira’s documents.

The client filed a civil lawsuit against the lawyer in July 2005 alleging breach of contract, legal malpractice, and unjust enrichment.  The lawyer failed to appear for his properly noticed December 21, 2005 deposition and never contacted opposing counsel or filed a notice of unavailability.  The lawyer also did not produce any documents in the request for production dated September 20, 2005, and which were ordered to be produced by December 19, 2005.  He did not produce any documents until January 4, 2006 and never produced all of the documents.

A hearing was held on the client’s second motion to compel on January 18, 2006 and the lawyer was admonished by the court and advised to fully cooperate with discovery.  At the lawyer’s deposition on January 27, 2006, the lawyer arrived with a client file containing documents that he had not previously produced pursuant to the request for production.  The lawyer produced the documents with redactions without making an objection or stating that a redaction had been made.  The lawyer also failed to produce credit card statements or receipts responding to the client’s first set of interrogatories that the circuit court had ordered him to produce. 

The referee found that “(the lawyer) engaged in a course of conduct (in the malpractice litigation) where he was uncooperative in coordinating the scheduling of hearings”, that he testified falsely and deceptively about advertising and the name of his law firm at his deposition.  He also testified falsely that the only pending litigation in which he was involved was a lawsuit against him by U.B. Vehicle Leasing, Inc. related to a dispute as to the mileage of a car even though a mortgage foreclosure action had been filed against him on November 1, 2004 and was pending at the time of the deposition.  The lawyer further falsely testified that the mortgage on his home had not been in foreclosure.  The referee found the lawyer’s failure to reveal the existence of the foreclosure action “particularly relevant to (the lawyer’s) lawsuit given (the lawyer’s) sworn deposition testimony on January 27, 2006, that he deposited the fees and costs the client paid him into his personal checking account and used the funds to pay, among other things, the mortgage on his home.

The trial court in the malpractice action entered an order granting a motion for sanctions and entry of default judgment on May 30, 2006, striking the lawyer’s defenses and awarding attorney’s fees and costs to the client.  The court also found that “(the lawyer) had ‘willfully failed and refused to comply with previous order (sic) of this Court, failed and refused to participate in pretrial discovery and provided falsified documents’ in the case.”  The trial court entered a final judgment against the lawyer on October 4, 2007, including a principal amount of  $20,000.00, which the lawyer paid to the client.  The lawyer appealed to the Fifth District Court of Appeal, which upheld the final judgment but remanded for a determination of the correct amount of attorney’s fees.  A Second Amended Final Judgment was entered on June 15, 2011 and, as of the date of the referee’s report, the lawyer had not paid any of the additional $24,246.00 in attorney’s fees, expert fees, and taxable costs awarded to the client.

The opinion concluded that the lawyer had “accepted a substantial fee from his client but did not perform notable work in furtherance of that representation. He also misused his client’s funds by twice traveling to Brazil, once for no apparent case-related reason and once as unnecessary to obtaining the information sought.  While the immigration issue may have been complicated, Respondent did not communicate that issue to Dr. Hill and Ms. de Oliveira.  Next, with respect to the malpractice action, Respondent failed to produce documents, did not appear for his first noticed deposition, and offered frivolous responses to the interrogatories.  Respondent has not paid the portion of the judgment awarding attorney’s fees and costs in the malpractice action, and continues to refer to his conduct as negligent.  Based upon the facts in this case and established case law, we find the referee’s recommended sanction of a ninety-day suspension unsupported and instead impose a one-year suspension.”

Bottom line:  This appears to be a somewhat blatant case of a lawyer taking advantage of a client, misusing client funds, and abusing the judicial system.  Based on the facts found by the referee as described in the opinion (and adopted by the court), it is surprising that the court did not impose a more severe sanction. 

Let’s 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, EsquireLaw Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 3375

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Communication with clients, dishonesty, Florida Bar, Florida Lawyer Ethics and Professionalism, fraud, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false testimony, Lawyer improper fees, Lawyer misrepresentation, Lawyer wilful failure to comply with court order, Lawyer wilful failure to comply with discovery