Category Archives: Communication with clients

Lawyer’s ethical duties and responsibilities when a represented person requests a second opinion

Hello everyone and welcome to this Ethics Alert which will discuss the lawyer’s ethical duties and responsibilities when a represented person contacts the lawyer to obtain a second opinion.  Although a lawyer is permitted to render a second opinion to a represented person who initiates the contact with the lawyer, there are important ethical and practical issues which should be considered before the lawyer agrees to do so.

A threshold issue is whether a second opinion would be an improper communication with a person represented by counsel.  In 2002, the ABA added a sentence to paragraph 4 of the Comment to Model Rule 4.2 which makes it clear that lawyers can provide second opinions if the lawyer is not representing another individual in the same matter.  Model Rule 4.2 has been adopted in substantial form by most jurisdictions, including Florida.  The Comment states:

(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.

Florida Bar Ethics Opinion 02-5 (March 3, 2013, rev. August 24, 2011) discusses types of information a lawyer can give to an individual who is seeking a second opinion as well as potential solicitation.  The opinion states that, a lawyer may provide information about the lawyer’s availability and qualifications when contacted by an individual and if the information is requested.

The opinion concludes:

… a lawyer may provide a second opinion to a person who is represented by counsel at the person’s request. In providing the second opinion, the lawyer must give competent advice, and in doing so should carefully consider any limitations with which the lawyer is faced. Rule 4-1.1, Rules Regulating The Florida Bar. The lawyer should scrupulously avoid improperly soliciting the person. The lawyer may discuss what services the lawyer would be able to provide if the represented person requests not merely a second opinion, but also information about the lawyer’s availability and qualifications. Whether or not particular communications between the lawyer and the represented person might be considered tortious interference with an existing lawyer-client relationship is a legal question, outside the scope of an ethics opinion.

As is stated in the above ethics opinion, before giving a second opinion, the lawyer should consider whether he or she can competently render the opinion.  In order to be competent, the lawyer might need to review the client’s file, which may only be available through the client’s current lawyer.

South Carolina Bar Opinion 97-07 (1997) states:

…A lawyer may discuss a pending legal matter with a client who is represented by another attorney. If the client is seeking a second opinion based on a subjective opinion rendered by the client’s attorney, the lawyer should carefully consider the basis of the advice of the client’s attorney and may be required to consult with the client’s attorney in order to give competent legal advice. If so, the lawyer should advise the client accordingly prior to giving any opinion or advice.

A lawyer who provides a second opinion is also creating an attorney/client relationship and attorney/client confidentiality would apply.  The scope of confidentiality is extremely broad and includes all information related to the representation, including the fact that the client came to the lawyer for a consultation; therefore, the lawyer would not be able to contact the person’s current lawyer, unless the client consents or there is an exception to the confidentiality rule.

Oregon State Bar Opinion 2005-81 (Revised 2014) states:

A lawyer may provide a second opinion to a potential client regarding the quality of work done by another lawyer. The lawyer may not inform the other lawyer of the client’s request unless the client consents or another exception to the duty of confidentiality is applicable.

Bottom line:  It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.

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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New Jersey lawyer receives censure for neglecting client matters, failing to communicate with clients, and fraud and dishonesty

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order which adopted the findings of the New Jersey Disciplinary Review Board and censured a lawyer for neglecting client matters, failing to communicate with clients, and engaging in conduct involving fraud or dishonesty.  The case is In The Matter of John R. Dusinberre, D-37 September Term 2015 078531 (Supreme Court of New Jersey April 5, 2017).  The New Jersey Supreme Court Order is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1082216 and the Disciplinary Board (DRB) Decision dated November 9, 2016 is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1077667

According to the DRB Decision, the lawyer was charged with violating Bar rules in four separate matters:

“In the first matter, respondent represented Anthony Domenick and 407-409 Summer Associates, LLC for a Paterson condominium development known as ‘Sandy Hill at Summer Street.’ The terms of the representation called for respondent to file a public offering statement (POS) with the New Jersey Division of Community Affairs (DCA) and to record a master deed in the county clerk’s office. Respondent told his client that he had filed the POS with the DCA and furnished him with a copy of a November 12, 2007 POS carrying registration number ‘04368.’ Respondent stipulated that he never filed a POS with the DCA. Rather, he had fabricated the POS and created a fictitious registration number; the DCA had never assigned a registration number to the Sandy Hill project. Although respondent also failed to record the master deed, he either informed his client, or led him to believe, that he had done so.

“In a second matter, respondent represented a client identified only as ‘Mr. Cerquirra’ and ‘88 St. Francis LLC’ regarding a condominium development project at 88 St. Francis Street in Newark. The representation required respondent to register the project with the DCA and to obtain a registration order. Respondent informed the client that he had obtained a registration order for the project from the DCA. He also gave the client an October 27, 2008 letter, purportedly from DCA’s Manager of the Planned Real Estate Department, Stewart P. Pallonis. Enclosed with that letter was an order of registration from the DCA carrying registration number 04487, and signed ‘Stewart P. Pallonis.’  In fact, respondent never registered the 88 St. Francis Street project with the DCA. Rather, he had fabricated both the Pallonis letter and the registration order, signing Pallonis’ name to both documents before giving them to the client.

“In a third matter, respondent represented Sterling Properties (Sterling) for a Cedar Knolls condominium project known as ‘Viera at Hanover.’ The representation required respondent to register the project with the DCA, but he failed to do so. Respondent, nevertheless, led Sterling to believe that he had registered the project with the DCA, knowing that he had not done so. In reliance on respondent’s false information, Sterling went forward with the project.

“In a fourth matter, respondent represented Sterling for another condominium project in Piscataway. That representation, too, required respondent to register the project with the DCA. Again, respondent failed to do so. Respondent led Sterling to believe that the Piscataway project, too, was registered with the DCA, knowing that it was not. Relying on respondent’s statements, Sterling proceeded with the development project.”

“During respondent’s entire thirty-four-year career at MSLD, he reported to Barry Mandelbaum, the managing attorney, and twelve years his senior. Respondent described Mandelbaum as a “benevolent despot” and a “mentor.” Respondent was never “encouraged” to generate business for the firm. Rather, he tended to work on legal matters that Mandelbaum generated.

“Respondent described his relationship with Mandelbaum as a stressful one. Mandelbaum would berate respondent publicly, place notes on respondent’s door about perceived failings, and subject him to ‘105 decibel,’ public ‘dress downs,’ all of which were extremely embarrassing.

“As the law firm grew larger, younger attorneys became partners. By the mid-2000s, some of those partners had come to expect respondent to complete work on projects that they had generated, placing additional pressure on respondent to perform.

“Several years before respondent engaged in the within misconduct, MSLD established an executive committee to manage the law firm. Respondent perceived that the new arrangement rewarded some of the younger, income-generating attorneys, at his expense. Feeling exposed, he became “terrified” about losing his job. At that juncture, he grew even more reliant on Mandelbaum for protection:

So my desire and drive to please him became extremely strong. And I can’t tell you the number of times when I would have an issue with a client, I would hear the client five minutes later on the phone with Barry and then I would hear Barry’s footsteps stomping down the hall to basically dress me down or yell at me and to confront me, or whatever it might be very publicly.

And it was extremely upsetting and got to the point where I went from a lawyer who loved to go to work every day to a lawyer who dreaded pulling into the parking lot of my law firm, counting whose cars were in to try and decide whose work I should be doing that day so that I wouldn’t get yelled at or — or, you know, almost — I almost use the word bullied, although I’m an adult and was an adult at the time, and it’s a hard concept to have, but it’s the desperate situation I found myself in. (T20-10 to T21-2.)

“Worried about being ‘kicked out’ of MSLD, respondent felt tremendous pressure to complete tasks on time, according to schedules that other attorneys prepared for him. Also pressing was the fear that, because he was over sixty years old and had never been in another legal setting, he could not strike out on his own.”

The DRB Decision also found that the lawyer had no prior discipline, expressed remorse for his misconduct, and paid former clients, the firm and the DCA hundreds of thousands of dollars as restitution.  The DRB recommended a censure (which is a stronger sanction than a reprimand in New Jersey).  The New Jersey Supreme Court adopted that sanction and censured the lawyer.

Bottom line:  This case is unusual, to say the least.  Although the lawyer provided significant mitigation (including the serious “berating” by a supervising partner and “cracking under the pressure” of the partner’s criticism), his underlying misconduct, including his multiple false statements to clients, neglecting client matters and failing to communicate, would appear to be serious enough to merit a suspension, notwithstanding the mitigation that he provided.  The lawyer was in his 50’s and 60’s when the misconduct occurred. One could certainly conclude that the lawyer’s testimony about the “pressure” of the practice was somewhat of an excuse and not an explanation.

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

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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New Jersey lawyer receives censure for neglecting client matters, failing to communicate with clients, and fraud and dishonesty

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order which adopted the findings of the New Jersey Disciplinary Review Board and censured a lawyer for neglecting client matters, failing to communicate with clients, and engaging in conduct involving fraud or dishonesty.  The case is In The Matter of John R. Dusinberre, D-37 September Term 2015 078531 (Supreme Court of New Jersey April 5, 2017).  The New Jersey Supreme Court Order is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1082216 and the Disciplinary Board (DRB) Decision dated November 9, 2016 is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1077667

According to the DRB Decision, the lawyer was charged with violating Bar rules in four separate matters:

“In the first matter, respondent represented Anthony Domenick and 407-409 Summer Associates, LLC for a Paterson condominium development known as ‘Sandy Hill at Summer Street.’ The terms of the representation called for respondent to file a public offering statement (POS) with the New Jersey Division of Community Affairs (DCA) and to record a master deed in the county clerk’s office. Respondent told his client that he had filed the POS with the DCA and furnished him with a copy of a November 12, 2007 POS carrying registration number ‘04368.’ Respondent stipulated that he never filed a POS with the DCA. Rather, he had fabricated the POS and created a fictitious registration number; the DCA had never assigned a registration number to the Sandy Hill project. Although respondent also failed to record the master deed, he either informed his client, or led him to believe, that he had done so.

“In a second matter, respondent represented a client identified only as ‘Mr. Cerquirra’ and ‘88 St. Francis LLC’ regarding a condominium development project at 88 St. Francis Street in Newark. The representation required respondent to register the project with the DCA and to obtain a registration order. Respondent informed the client that he had obtained a registration order for the project from the DCA. He also gave the client an October 27, 2008 letter, purportedly from DCA’s Manager of the Planned Real Estate Department, Stewart P. Pallonis. Enclosed with that letter was an order of registration from the DCA carrying registration number 04487, and signed ‘Stewart P. Pallonis.’  In fact, respondent never registered the 88 St. Francis Street project with the DCA. Rather, he had fabricated both the Pallonis letter and the registration order, signing Pallonis’ name to both documents before giving them to the client.

“In a third matter, respondent represented Sterling Properties (Sterling) for a Cedar Knolls condominium project known as ‘Viera at Hanover.’ The representation required respondent to register the project with the DCA, but he failed to do so. Respondent, nevertheless, led Sterling to believe that he had registered the project with the DCA, knowing that he had not done so. In reliance on respondent’s false information, Sterling went forward with the project.

“In a fourth matter, respondent represented Sterling for another condominium project in Piscataway. That representation, too, required respondent to register the project with the DCA. Again, respondent failed to do so. Respondent led Sterling to believe that the Piscataway project, too, was registered with the DCA, knowing that it was not. Relying on respondent’s statements, Sterling proceeded with the development project.”

“During respondent’s entire thirty-four-year career at MSLD, he reported to Barry Mandelbaum, the managing attorney, and twelve years his senior. Respondent described Mandelbaum as a “benevolent despot” and a “mentor.” Respondent was never “encouraged” to generate business for the firm. Rather, he tended to work on legal matters that Mandelbaum generated.

“Respondent described his relationship with Mandelbaum as a stressful one. Mandelbaum would berate respondent publicly, place notes on respondent’s door about perceived failings, and subject him to ‘105 decibel,’ public ‘dress downs,’ all of which were extremely embarrassing.

“As the law firm grew larger, younger attorneys became partners. By the mid-2000s, some of those partners had come to expect respondent to complete work on projects that they had generated, placing additional pressure on respondent to perform.

“Several years before respondent engaged in the within misconduct, MSLD established an executive committee to manage the law firm. Respondent perceived that the new arrangement rewarded some of the younger, income-generating attorneys, at his expense. Feeling exposed, he became “terrified” about losing his job. At that juncture, he grew even more reliant on Mandelbaum for protection:

So my desire and drive to please him became extremely strong. And I can’t tell you the number of times when I would have an issue with a client, I would hear the client five minutes later on the phone with Barry and then I would hear Barry’s footsteps stomping down the hall to basically dress me down or yell at me and to confront me, or whatever it might be very publicly.

And it was extremely upsetting and got to the point where I went from a lawyer who loved to go to work every day to a lawyer who dreaded pulling into the parking lot of my law firm, counting whose cars were in to try and decide whose work I should be doing that day so that I wouldn’t get yelled at or — or, you know, almost — I almost use the word bullied, although I’m an adult and was an adult at the time, and it’s a hard concept to have, but it’s the desperate situation I found myself in. (T20-10 to T21-2.)

“Worried about being ‘kicked out’ of MSLD, respondent felt tremendous pressure to complete tasks on time, according to schedules that other attorneys prepared for him. Also pressing was the fear that, because he was over sixty years old and had never been in another legal setting, he could not strike out on his own.”

The DRB Decision also found that the lawyer had no prior discipline, expressed remorse for his misconduct, and paid former clients, the firm and the DCA hundreds of thousands of dollars as restitution.  The DRB recommended a censure (which is a stronger sanction than a reprimand in New Jersey).  The New Jersey Supreme Court adopted that sanction and censured the lawyer.

Bottom line:  This case is unusual, to say the least.  Although the lawyer provided significant mitigation (including the serious “berating” by a supervising partner and “cracking under the pressure” of the partner’s criticism), his underlying misconduct, including his multiple false statements to clients, neglecting client matters and failing to communicate, would appear to be serious enough to merit a suspension, notwithstanding the mitigation that he provided.  The lawyer was in his 50’s and 60’s when the misconduct occurred. One could certainly conclude that the lawyer’s testimony about the “pressure” of the practice was somewhat of an excuse and not an explanation.

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

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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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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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

 

 

 

 

 

 

 

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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

 

 

 

 

 

 

 

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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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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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