Category Archives: Confidentiality and privilege

Indiana criminal prosecutor suspended for 4 years for twice eavesdropping on confidential attorney/client conversations

Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion suspending a lawyer for 4 years for eavesdropping on confidential attorney/client conversations with no automatic reinstatement.  The case is In the Matter of Robert Neary, No. 46S00-1512-DI-705 (Ind. SC), and the November 6, 2017 disciplinary opinion is here: http://www.in.gov/judiciary/opinions/pdf/11061701per.pdf

The Indiana Supreme Court Disciplinary Commission filed a two-count disciplinary complaint against the lawyer on December 17, 2015, and later amended the complaint.  The amended complaint charged the lawyer with “professional misconduct in connection with his actions in two criminal cases while serving as the chief deputy prosecutor in LaPorte County (Michigan).”

The first count of the complaint alleged that the prosecutor had surreptitiously watched video feeds of an attorney/client confidential conversation in March 2014 at the Michigan City Police Department.  A defense lawyer had flipped a switch that was supposed to prevent the conversation from being recorded; however, the police controlled the live video and audio.

The lawyer and police detectives watched the conversation from the police station’s “war room.”  During the conversation, the defendant (Taylor) told his lawyer where a gun could be found.  The lawyer advised the police detectives not to recover the weapon; however, they ignored his advice and recovered the weapon.

The chief of police later learned of the recording and told the lawyer that he should provide the information the defendant’s counsel.  The lawyer subsequently provided the information to the defendant’s lawyer and also reported his misconduct to the Indiana Bar authorities.

The second count alleged that the lawyer listened to an attorney/client confidential conversation that was recorded in December 2012 at the Long Beach (Michigan) Police Department.  The defendant (Larkin) had agreed to speak with police with his lawyer present, in exchange for being charged with voluntary manslaughter rather than murder.

During an 11-minute break in the questioning, the defendant discussed defense strategy and other confidential matters with his lawyer; however, the recording system was not turned off.  The lawyer viewed the recorded interview that included the attorney/client confidential discussion during the break about a month later.

According to the opinion, “Respondent first viewed the DVD of the interview, including the break discussion, about one month later. Respondent watched the entire break discussion even though the privileged status of that discussion either was, or should have been, immediately apparent to Respondent.  Respondent provided a copy of the DVD, including the break discussion, to Larkin’s counsel but did not mention to counsel that the break discussion had been recorded.”

The Larkin’s lawyer later filed a motion to dismiss the voluntary manslaughter charge alleging prosecutorial misconduct because of the recording of the discussion.  The lawyer’s response, which was sealed, provided the contents of the break discussion and included the written transcript and a DVD.  A judge later unsealed sealed the information.

The opinion noted that both of the cases had led to appeals and stated that the lawyer’s conduct had “fundamentally infringed on privileged attorney-client communications and, at an absolute minimum, has caused significant delays and evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be prosecuted at all.”  The court had reviewed the Taylor matter on appeal and described the eavesdropping as “egregious,” “flagrant,” “unconscionable,” “shameful,” “abhorrent” and “reprehensible.”

After a hearing, the hearing officer found that the lawyer had committed the Bar rule violations charged in the amended complaint and recommended a sanction ranging from a four-year suspension to disbarment.  The Indiana Bar Commission recommended disbarment.

According to the opinion: “(i)n many respects, these proceedings have painted an even more alarming picture of Respondent, in that they show Respondent gradually has retreated from his initial self-report to the Commission and has given evasive and inconsistent explanations and statements regarding the war room eavesdropping.  As aptly found by the hearing officer, ‘Respondent’s ever evolving narrative points to a lack of honesty.’”

The opinion further states: “(t)he severity of the misconduct and Respondent’s repeated transgressions certainly lend support to the notion that he should be disbarred. On the other hand, Respondent has no prior discipline, he self-reported his conduct to the Commission, and several persons testified to his good reputation in the community (although, as noted by the hearing officer, these persons did not appear to have been particularly well informed of the circumstances giving rise to these disciplinary proceedings). At the end of the day, these considerations persuade us that the door should not permanently be closed on Respondent’s legal career and that he should be afforded an opportunity at an appropriate juncture to prove by clear and convincing evidence his professional rehabilitation and fitness to resume practicing law.”

Bottom line: This prosecutor was involved in two separate serious violations of attorney/client confidentiality by viewing and listening to surreptitious recordings and clearly should have known better.  In my opinion, the lawyer was extremely fortunate that he avoided disbarment for his misconduct.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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New York Bar opinion states that lawyers must take reasonable steps to protect confidential information in a border search

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York City Bar Association ethics opinion which states that lawyers must take reasonable precautions to protect attorney/client confidential information if the lawyer is searched by U.S border/customs agents (and/or agents of other countries).  The ethics opinion is NYCBA Formal Opinion 2017-5:  An Attorney’s Ethical Duties Regarding U.S. Border Searches of Electronic Devices Containing Clients’ Confidential Information and it is here: NYCBA Opinion 2017-5.

The opinion states that the lawyer should take reasonable precautions, which will be dependent upon various factors, including the sensitivity of the information, the likelihood of disclosure, and the cost and difficulty caused by implementation of the precautions.  The opinion further states that the simplest way to avoid the issue is to not possess any client confidential information when crossing the border and options would include carrying a “burner” telephone, laptop computer, or other digital device, removing confidential information from digital devices, signing out of cloud-based services, uninstalling applications allowing remote access to confidential information, storing confidential information in secure online locations rather than locally on digital devices, and using encrypted software.

If a border agent asserts lawful authority to search an electronic device containing confidential data, the opinion states that the lawyer should try to prevent disclosure which would include advising the border agent that the device contains confidential information and files, requesting that the confidential information and/or files not be searched or copied and, if the agent is not deterred from conducting the search, asking to speak to the agent’s superior. The lawyer should also carry proof of his or her Bar membership to support the argument.

The opinion states that lawyers should also consider having printed copies of the border agency’s policies and/or guidelines on border searches available since, under the U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection guidelines, agents who are advised of a confidentiality claim state that an agent should seek further review to determine whether there is a “suspicion” that the asserted confidential material may constitute evidence of a crime or pertain to matters within the agencies’ jurisdiction.

“Although it is uncertain how border agents apply this ‘suspicion’ standard in actual searches, attorneys should take advantage of this possible avenue for preventing the disclosure of clients’ confidential information.”  Finally, if confidential information is seized or compromised during a search, the affected clients should be promptly notified.

Bottom line:  This ethics opinion appears to be the first to address the issues related to searches of a lawyer’s electronic devices during a border search.  According to the opinion, lawyers who travel outside of the United States should take reasonable measures to avoid disclosure of client information if U.S. border agents (or border agents of another country) search their electronic devices and, if confidential or privileged material is disclosed, lawyers must notify the affected clients.  My recommendation to lawyers is to avoid the issue by carrying “burner” devices and not having any client confidential information when crossing the border or, if that option is not feasible, storing confidential information in a secure online location and/or using encrypted software.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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

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

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

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

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

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

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

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

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

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 477, which was issued on May 11, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  The Formal Opinion is here: ABA Formal Opinion 477.

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

The Formal Opinion states:  “(i)n Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.”

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

Bottom line:  This ABA opinion addresses the ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules of Professional Conduct and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

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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ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 477, which was issued on May 11, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  The Formal Opinion is here: ABA Formal Opinion 477.

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

The Formal Opinion states:  “(i)n Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.”

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

Bottom line:  This ABA opinion addresses the ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules of Professional Conduct and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

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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Florida Supreme Court finds that attorney-client privilege prohibits inquiries into lawyer/doctor referral relationships

Hello everyone and welcome to this Ethics Alert which will discuss the important very recent Florida Supreme Court opinion which prohibit inquiries by defense counsel into referral relationships between the plaintiff’s law firm and a physician.  The case is Worley v. Central Florida Young Men’s Christian Ass’n, Inc., No. SC15-1086 (Fla. SC April 13, 2017).  The Florida Supreme Court opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc15-1086.pdf

The Florida Supreme Court considered the case because of a certified conflict under art. V, § 3(b)(4), Fla. Const. in the opinions of the Fifth District Court of Appeal (in this case) and the Second District Court of Appeal (in Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992).

According to the opinion, Heather Worley was a plaintiff in a lawsuit against YMCA after she allegedly fell in a Florida YMCA parking lot.  Worley was represented by Morgan & Morgan.  At Worley’s depositions, YMCA’s lawyer asked if she was referred to her specialists by her attorneys and Worley’s lawyer objected on the ground that the information was attorney-client privileged.

YMCA then served interrogatories directed to specific doctors employed by three medical providers with whom Worley treated and also served a supplemental request to produce to Morgan & Morgan, to attempt to establish the existence of a referral relationship between Morgan & Morgan and the treating physicians.  The opinion states that “(t)hese efforts were based on YMCA’s suspicions that there was a ‘cozy agreement’ between Morgan & Morgan and the physicians, due to the amounts of Worley’s medical bills.”

Worley objected (through Morgan & Morgan) and stated that the discovery requests were “overbroad, vague, unduly and financially burdensome, irrelevant and in violation [of] allowable discovery pursuant to Florida Rule of Civil Procedure 1.280(b)(4).”  She also contended that Morgan & Morgan does not maintain “information for treating physicians as in this matter, or otherwise.”

At a hearing on Worley’s objections, “the trial court only sustained Worley’s objection to the question regarding whether she was referred to the doctors by her attorneys and ‘did not address Worley’s objections to YMCA’s other outstanding discovery requests at that time.’”  The Fifth DCA upheld the lower court’s order and relied on Florida district court decisions which held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable if evidence of a referral relationship can be shown.  Those cases relied upon the Florida Supreme Court’s decision in Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999).

In its 4-3 decision, the Court rejected the application of Boecher and found that the defense attorneys were prohibited from inquiring about the referral relationships between plaintiff’s firm, Morgan & Morgan, and Sea Spine Orthopedic Institute stating that “(a)llowing further discovery into a possible relationship between the physician and the plaintiff’s law firm would only serve to uncover evidence that, even if relevant, would require the production of communications and materials that are protected by attorney-client privilege.”  “We do not agree with the Fifth District’s attempt to circumvent the attorney-client privilege out of perceived necessity. The attorney-client privilege is the oldest confidential communication privilege known in the common law.”

“Even in cases where a plaintiff’s medical bills appear to be inflated for the purposes of litigation, we do not believe that engaging in costly and time-consuming discovery to uncover a “cozy agreement” between the law firm and a treating physician is the appropriate response. We are concerned that this type of discovery would have a chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation themselves. Moreover, we worry that discovery orders such as the one in this case will inflate the costs of litigation to the point that some plaintiffs will be denied access to the courts, as attorneys will no longer be willing to advance these types of costs. Finally, attempting to discover this information requires the disclosure of materials that would otherwise be protected under the attorney-client privilege.”

The Supreme Court opinion quashed Fifth DCA’s decision permitting the discovery and approved the decision of the Second DCA.

Bottom line: This case is important since it addresses and appears to settle the question of whether the defense in a personal injury case (or any case) can use discovery to attempt to determine if there is a “cozy” relationship between the plaintiff’s law firm and treating medical providers.  The opinion found that the information sought was protected by the attorney/client privilege, §90.502(2), Fla. Stat., and that the discovery was prohibited.

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

Joseph A. Corsmeier, Esquire

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

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

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under .S. Supreme Court, attorney/client privilege, Attorney/client privilege and confidentiality, Attorney/client privilege discovery of referral relationships with doctors, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer ethics duties re subpoena for client confidential documents and information, prohibition of inquiries into lawyer/doctor referrals

Michigan board recommends disbarment for lawyer who allegedly lied about, inter alia, being on the 1996 U.S. Olympic team

Hello everyone and welcome to this Ethics Alert which will discuss the recent Michigan Disciplinary Board opinion recommending disbarment for lawyer who allegedly lied about his qualifications and participation on a U.S. Olympic team.  The case is Michigan Grievance Administrator, v. Ali S. Zaidi, Case No. 14-117-GA (January 11, 2017).  The Disciplinary Board’s opinion is here: http://www.adbmich.org/coveo/opinions/2017-01-11-14o-117.pdf

According to the Board opinion, the lawyer made misrepresentations that “run the gamut from outlandish and extravagant to what might be termed modifications of his record inspired by some actual events”.  The lawyer misrepresented and inflated the time of his employment and invented fictional summer associate positions at law firms where he worked at other times.  He was employed for short periods by law firms in Connecticut and Missouri and he falsely claimed that he was admitted to practice in those states.

The lawyer also falsely claimed that he was on the 1996 U.S. Olympic field hockey team and that he had a master of liberal arts from Harvard University.  He also maintained a website that represented that his law firm, called Great Lakes Legal Group, was associated with multiple lawyers at several locations around the country.  The lawyer admitted that this representation was false and that law firm was just an “idea that is still in progress.”

A disciplinary hearing was scheduled before a Board panel.  The lawyer requested that the hearing be continued because of a birthday party for his children and later because he could not obtain child care. The request was denied and the hearing was held without his presence.  The panel found the lawyer guilty, found numerous aggravating factors, and recommended disbarment.

The lawyer filed a petition for review claiming that he missed the hearing because his daughter was recovering from surgery on her eye; however, the disciplinary board found that the lawyer had been provided proper notice and upheld the decision not to continue the hearing.

The lawyer appeared at the sanctions hearing before the panel and admitted that he made misrepresentations regarding his qualifications since he was “scared nobody would hire me if they realized why I was moving around so much…and I wanted to create this impression of longevity and create this impression of consistency of my movements.”

According to the Board opinion, the lawyer “did not present any coherent reason or evidence for his conduct that could be viewed as mitigating, in part, he claimed, because he did not want to inconvenience his character witnesses. Furthermore, he failed to present any argument on what sanction would be appropriate.”

The Board opinion found that, “(c)ollectively, (the lawyer’s) actions are indicative of a cumulative pattern of a lack of honesty and candor, which is contrary to the fundamental characteristics of an attorney. Although respondent does not have any prior discipline, there is no question he has an established track record of deceit. Given the number and pattern of violations, respondent’s dishonesty, and his overall lack of candor and cooperation, the panel properly found that disbarment is appropriate in this case.”

Bottom line:  This a somewhat bizarre case, to put it mildly.  The lawyer appears to have a problem with the truth and apparently tried to justify his actions with self-serving excuses.  The Michigan Supreme Court will now review the case and determine the sanction.

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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