Category Archives: Conflict of interest criminal cases

Florida Supreme Court disbars lawyer for, inter alia, making agreement with defendant for payment to make the case “go away” while representing victim

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent the Florida Supreme Court Order which upheld a referee’s report and disbarred a Florida lawyer for, inter alia, making an agreement with a defendant in a criminal matter for payment to make the criminal case “go away” while representing the victim in the same case. The Order is: The Florida Bar v. Mark F. Germain, SC12-1981 and SC12-2289 (July 8, 2014) and is here: http://www.floridasupremecourt.org/clerk/dispositions/2014/07/12-1981_12-2289.pdf.

According to the referee’s report, which was adopted by the Florida Supreme Court, Jeffrey Bowman was arrested in Lake County, Florida on or about July 1, 2011, following an alleged domestic battery on Bonnie DePaolo. Bowman was later released and ordered to have no contact with DePaolo as a condition of his pretrial release. An Assistant State Attorney met DePaolo on the day of Bowman’s bond hearing and she said that she was very upset that Bowman was bonding out of jail.

According to testimony by the lawyer, Bowman was the subject of a 2007 injunction regarding DePaolo and she also went to the hospital after the incident for the injuries Bowman allegedly caused. DePaolo’s sister, Rita Hazlett, testified that, while DePaolo was staying with, a Sheriff’s deputy came to her house to warn her that Bowman had threatened to kill her and that he came into her yard, angry and waving a gun.

In early July 2011, the lawyer agreed to represent DePaolo, the victim in the matter. The lawyer then called the defendant, Bowman, and requested a meeting at a restaurant in order to make it “all go away.” Bowman testified that they discussed getting his belongings back and dropping the prosecution for “cash.” Bowman did not agree to this, and the settlement was not finalized.

The lawyer then called attorney John Bruce Bowman, the brother of Bowman, and suggested to him that Bowman pay a “substantial” amount of money to avoid prosecution. Attorney Bowman told him that the suggestion was extortion and he would not be a part of it. Attorney Bowman later reviewed a settlement agreement that was negotiated between Bowman and the lawyer. He also stated that the lawyer never discussed a civil settlement or claim and that the telephone call was about “saving money with a criminal lawyer and getting money to resolve a criminal matter.”

The lawyer testified that the content of the proposed settlement agreement was in an e-mail he sent to Jeffrey Bowman and attorney Bowman; however, attorney Bowman apparently never received a copy of any e-mail because of a “faulty e-mail address”. The lawyer also did not have DePaolo’s medical bills at the time of the agreement, which later exceeded $3,000.00.

The lawyer tried to resolve the criminal case before a July 14, 2011 meeting between the Assistant State Attorney and DePaolo so that Bowman would not have to “spend money” on a criminal defense attorney. The lawyer testified that he was aware of the Bar rules prohibiting compensating people to drop criminal charges and that he did not call the Florida Bar Hotline during the preparation of the agreement.

The lawyer then prepared a settlement agreement in which DePaolo would sign an Intent Not to Prosecute and “in good faith make every effort to ensure that there is no prosecution.” The agreement also contained the following statement: “I, attorney Mark F. Germain, hereby acknowledge receipt of $1,500 from Jeffrey ALLEN BOWMAN on behalf of BONNIE DEPAOLO as compensation for the concessions made herein.” (emphasis supplied). The agreement was signed July 10, 2011, by both the lawyer and DePaolo; however, the lawyer never received the $1,500.00 from Jeffrey Bowman.

Soon after the agreement was signed, the lawyer called attorney James Hope, who was his supervising attorney for probation imposed in a previous Bar matter, regarding the agreement. “Mr. Hope dissuaded (the lawyer) from using the language in paragraph three, but (the lawyer) continued to press as to why he thought the language was appropriate. Mr. Hope told (the lawyer), ‘I wouldn’t touch that with a ten foot pole.’ (The lawyer) then admitted that the agreement was not a proposal, and that he had already signed it.”

The referee found that the lawyer did not competently in representing DePaolo, including the failure to obtain an injunction, which would have “greater enforceability and consequences for violation than a ‘no contact’ order from first appearance (an order prohibiting contact with Ms. DePaolo as a condition of pretrial release). He also waived her ability to seek personal injury damages, without knowing what those damages were, and then encouraged settlement for a sum of money far below the actual costs she incurred for medical treatment.”

The referee also found “(the lawyer) also discouraged the criminal prosecution of the ‘perpetrator’ in this case, which prosecution may have resulted in further protections and restitution for Ms. DePaolo. He attempted to negotiate a settlement which was beneficial to Jeffrey Bowman and detrimental to Bonnie DePaolo, and he attempted to extort funds from Jeffrey Bowman in exchange for a declination of prosecution. In addition to the harm this caused to Ms. DePaolo, Respondent ultimately interfered with the State’s prosecution of Jeffrey Bowman by negotiating terms encouraging Ms. DePaolo’s non-participation as a witness in the case.”

The referee also found that “(the lawyer) was misleading during the Bar’s investigation of this matter. For example, he prepared two affidavits for Ms. DePaolo, which were at best self-serving testimony, and were not accurate. During the hearing, Ms. DePaolo could not even read portions of the Affidavits, and it was clear that the contents were not her testimony. These affidavits were prepared at critical points in the disciplinary process. (The lawyer) also gave deposition testimony that was not accurate.”

After listing the Bar Rules that the lawyer violated, including 4-1.1, 4-1.7(a)(2), 4-3.4(b), 4-8.4(a), and 4-8.4(d), applying the Florida Standards for Imposing Lawyer Sanctions, mitigation and aggravation, and case law, the referee recommended that the lawyer be held in contempt of his probation and permanently disbarred. In a one page Order, the Florida Supreme Court upheld the referee’s findings and found the lawyer in contempt; however, the Court reduced the permanent disbarment to a 5 year disbarment.

Bottom line: This is a somewhat bizarre set of facts to say the least and, according to the referee’s report, the lawyer apparently knew that what he was doing was a violation of the Bar rules. He will now have 5 plus years to think about it.

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

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North Dakota lawyer receives reprimand for violating conflict of interest rules in representing both the defendant and victim in a single criminal case and making false statements to prosecutor

            Hello everyone and welcome to this Ethics Alert blog which will discuss the recent North Dakota Supreme Court disciplinary opinion reprimanding a lawyer for violating conflict of interest rules by representing both the defendant and victim in a single criminal case and making false statements to the prosecutor.  The case is Disciplinary Board of the Supreme Court of the State of North Dakota v. Blake D. Hankey, No. 20120304, 2012 ND 206 (October 15, 2012).  The opinion is here:  http://www.ndcourts.gov/court/opinions/20120304.htm

According to the opinion, the lawyer was admitted to practice in North Dakota on May 5, 2005 and he “undertook dual representation of an alleged perpetrator and alleged victim of the crimes of aggravated assault and terrorizing.”  The “alleged perpetrator” and alleged victim executed a single representation agreement; however, since there was a no-contact order between them, the alleged victim signed in the lawyer’s office and the “alleged perpetrator” signed at the correctional center where he was being held on the criminal charges. The lawyer had the clients execute a waiver of conflict of interest

When he spoke with the criminal prosecutor handling the case, the lawyer failed to advise her that he also represented the alleged victim.  When she learned of the dual representation, the prosecutor confronted the lawyer about the apparent conflict of interest and the lawyer falsely told her that he had cleared any conflict with his partners.

The lawyer was charged with violating the following North Dakota disciplinary rules: 1.7(a) a lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests; 1.2(A)(3), a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 8.4(c), a lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.

After a hearing, a disciplinary panel found that the lawyer’s conduct violated Rule 1.7(a), by representing one client whose interests were “inescapably adverse” to another client because they were alleged perpetrator and alleged victim of crimes and because he took steps that were adverse to each of them but that he did not violate Rule 1.2(A)(3) and Rule 8.4(c) since the false statement that he had cleared the conflict of interest with his partners did not affect the analysis and did not help him in any way and should not have mattered to the prosecutor. The panel also found that the lawyer did not have an ethical duty to disclose the victim’s status as his client before he was asked about it by the prosecutor.  The panel recommended that the lawyer be reprimanded and pay the costs.

The opinion upheld the violation of Rule 4-1.7(a) but reversed the panel’s recommendation that the lawyer did not violate Rule 8.4(c) and found that there was clear and convincing evidence that the lawyer violated the rule since he admitted making the false statement that he had cleared the conflict of interest with his partners.  The opinion upheld the recommended sanction of a reprimand and payment of costs.

Bottom line:  the facts and result of this case are a bit crazy, to say the least.  Not only did the lawyer represent both the alleged “perpetrator” and alleged victim in a single criminal case, but he also falsely claimed to the prosecutor that he had disclosed the dual representation to his partners and that they had approved the representation (the lawyer apparently never thought that the conflict might not be waivable by the clients either).  Somewhat surprisingly, the lawyer received only a reprimand.

…be careful out there!

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 Attorney discipline, Attorney Ethics, Conflict of interest criminal cases, joe corsmeier, Lawyer conflict of interest, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misrepresentation, Lawyer sanctions