Category Archives: deceit

Florida Supreme Court disbars 3 lawyers for misconduct in the settlement of multiple PIP and bad faith claims

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which disbarred 3 Florida lawyers for misconduct in settling multiple PIP and bad faith claims.  The opinion is The Florida Bar v. Charles Jay Kane, The Florida Bar v. Harley Nathan Kane, The Florida Bar v. Darin James Lentner, No. SC13-388 (October 6, 2016) and the opinion is here:  http://www.floridasupremecourt.org/decisions/2016/sc13-388.pdf.

The lengthy opinion outlines and discusses the complicated underlying facts, including the involvement of the lawyers in settling the PIP claims and failing to inform and misleading both the clients and the lawyers who were handling separate bad faith claims against Progressive Insurance.   Although this is a fairly lengthy Ethics Alert, the relatively short format of my Ethics Alerts do not permit a full discussion of the case, and readers are urged to read the case for more information and clarification.

According to the opinion, the lawyers took on the representation of 441 PIP claims on behalf of various medical providers.  Two other lawyers were retained to file bad faith claims.  The claims were filed in a matter called the “Goldcoast” litigation, in which only 37 of the PIP clients were involved.  Each of the PIP law firms (Kane & Kane, Watson & Lentner, and Marks & Fleischer) and each of the bad faith attorneys executed a contract agreeing to jointly represent all thirty-seven plaintiffs.

During the bad faith litigation, the bad faith lawyers were able to compel disclosure of documents which strengthened the bad faith claims.  At mediation on the bad faith claims, Progressive offered only $3.5 million, which offer was rejected.

The disclosure of the documents apparently caused Progressive to consider settlement.  Progressive’s counsel later initiated settlement negotiations with the PIP lawyers only and the bad faith lawyers were not part of those negotiations.  Progressive  offered an aggregate amount of $14.5 million, to settle all of the claims, including both the PIP and bad faith claims, and attorney fees.  On May 16, 2004, all six of the PIP lawyers (including the disbarred lawyers) met with lawyers from Progressive to put the agreement in writing.  The bad faith lawyers were not told of Progressive’s offers, and they were not asked to attend the meeting.

“As a result of the meeting, the PIP lawyers signed a ‘Memorandum of Understanding’ (MOU) settling all cases and claims, subject to client agreement.  Pursuant to the MOU, the clients were required to release all claims against Progressive, including both PIP claims and bad faith claims. The MOU did not specify how the settlement funds would be allocated and it was left to the PIP lawyers to divide the funds between the claims and the costs and fees.”

“The only requirement to trigger the $14.5 million payment was a certain number of signed client releases: 100 percent of the named Goldcoast case plaintiffs and 80 percent of the remaining PIP clients of all three PIP firms. Also as a part of the MOU, the PIP lawyers agreed to defend, indemnify, and hold the Progressive entities harmless from any claims of their clients.  Several days later, the PIP lawyers, including the disbarred lawyers, met with one of the bad faith lawyers, Larry Stewart, and offered him $300,000 to compensate all three bad faith attorneys for their work on the bad faith case. The PIP lawyers did not disclose the terms of the settlement with Progressive, stating only that the cases and claims had been settled.”

According to the opinion, “the bad faith attorneys then wrote a letter to each of the named plaintiffs in the Goldcoast case, explaining their efforts to compel production of Progressive’s internal documents and the April 2004 mediation. The letter asserted that as a result of the PIP lawyers’ secret settlement with Progressive, the clients’ bad faith claims may have been ‘compromised or even sacrificed.’”

“The bad faith attorneys sent a copy of their letter to each of the PIP law firms and asked the PIP lawyers to forward the letter to their clients who were not named in the Goldcoast case; however, the lawyers did not forward the letter as requested. Instead, Respondent Charles Kane drafted a letter, titled ‘Notice of Disagreement Between Counsel’ (disagreement letter), for the PIP law firms to send to clients who were named as plaintiffs in the Goldcoast case.  The letter contained misleading statements regarding the bad faith attorneys and their efforts to pursue the bad faith claims on behalf of the clients.”

An Amended Memorandum of Understanding (AMOU) was later drafted and, after the law firm contacted the clients and obtained the releases, the settlement funds were paid by Progressive.  Kane & Kane received $5.25 million. The firm paid $672,742 to its PIP clients, $433,202 in costs, and took $4,144,055 in attorney fees. Watson & Lentner received $3,075,000, and the firm paid $361,470 to its PIP clients, $190,736 in costs, and took $2,522,792 in attorney fees. Once the firms received the settlement money, the bad faith attorneys were discharged, and a notice of voluntary dismissal with prejudice was filed, ending the Goldcoast case.

The bad faith lawyers then sued the PIP lawyers and, in April 2008, Judge David F. Crow entered a final judgment in favor of the bad faith attorneys on their quantum meruit and/or unjust enrichment claims. The final judgment included extensive findings as to the PIP lawyers’ actions, noting that the matter “could be a case study for a course on professional conduct involving multi-party joint representation agreements and the ethical pitfalls surrounding such agreements.”

The Supreme Court opinion upheld the finding of guilt and rule violations made by the referee and disbarred all three lawyers.  “We agree with the referee that the PIP lawyers’ most egregious violation occurred when they abandoned their clients’ bad faith claims in favor of a greater fee for themselves.”  The opinion states that the “considerable violation of (the lawyers’) ethical responsibilities to their clients and the legal system, entirely for their own financial interests and at the expense of their clients, warrants disbarment.

Bottom line:  The 3 lawyers were disbarred for the misconduct which is briefly described above and is further detailed in the opinion.

The opinion also addressed a very important practice point for lawyers who handle PIP claims on behalf of medical providers since it upheld the referee’s findings that all three lawyers failed to provide their clients with closing statements in the PIP cases in violation of Florida Bar Rule 4-1.5(f).  “Although there was testimony presented to the referee that a closing statement is not typically provided in a PIP case because the attorney fee is not taken as a portion of the client’s overall recovery, the referee found, and we agree, that there is no specific exception in the Bar Rules authorizing this practice.”  The Court found that lawyers must provide closing statements to clients in PIP first party claims, even though the fees and costs are typically paid by the insurance company and not taken out of the client’s settlement funds.

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

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

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

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

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

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

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

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

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

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Missouri Supreme Court suspends lawyer who used payroll document and opposing counsel’s written direct exam questions from e-mails hacked by client

 

Hello and welcome to this Ethics Alert update blog which will discuss the disciplinary case against a Missouri lawyer who failed to disclose payroll document and direct examination questions of opposing counsel which were obtained by his client/husband by hacking the wife’s e-mail account, used them at a settlement conference, and planned to use them at a trial+.  The disciplinary case is In Re: Joel B. Eisenstein, No. SC95331 (Missouri SC 4/5/16) and the opinion is here: http://www.courts.mo.gov/file.jsp?id=99378.  My previous blog on this case is here:  https://jcorsmeier.wordpress.com/2016/02/11/missouri-lawyer-alleged-to-have-used-payroll-document-and-opposing-counsels-written-direct-exam-questions-from-e-mails-hacked-by-client/.

According to the disciplinary opinion, the lawyer was representing the husband in a dissolution matter.  The husband hacked the wife’s e-mail account and obtained her payroll documents and a list of direct examination questions prepared by the wife’s lawyer for the upcoming trial.  The husband gave the lawyer the payroll document in November 2013 and he used the payroll information in the document during a mediation/settlement conference before the trial.

During the trial, the lawyer provided documents to the opposing counsel which included a list of the direct examination questions which the opposing counsel had prepared and sent to her client via e-mail.  The opposing counsel asked the lawyer why he had the list of questions and he told her that there were some leading questions and he planned to object to them.

During a hearing that followed on the issue, the lawyer stated that his paralegal had erroneously included the questions in the stack of exhibits and claimed that he was joking when he made the remark about the leading questions to opposing counsel.  He admitted that he had received the documents from his client and failed to disclose them to opposing counsel.  The lawyer later sent opposing counsel an e-mail stating: “Rumor has it that you are quite the ‘gossip’ regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel’”.

According to the opinion, the lawyer violated Missouri Bar rules by failing to promptly disclose to opposing counsel that he had received the information/documents from his client and by sending the threatening e-mail to opposing counsel, which was prejudicial to the administration of justice.  According to media reports, the lawyer is 70 years old, and the opinion set out the lawyer’s prior disciplinary record:

Mr. Eisenstein’s license has been disciplined on five prior occasions. In 1991 and again in 1999, Mr. Eisenstein was admonished for violating Rule 4-3.5(b) by engaging in ex parte communications with the judge. In 1997, this Court suspended Mr. Eisenstein after he  pleaded guilty to a federal misdemeanor for willfully failing to file an income tax return. In 2001, Mr. Eisenstein was admonished for violating Rule 4-8.1(b) by failing to respond to the OCDC’s request for information regarding an ethics complaint. Finally, in 2004, Mr. Eisenstein was admonished for violating Rule 4-3.3(d) for failing to inform the court of material facts relevant to a pending issue.

The opinion of the majority suspended the lawyer indefinitely and for a minimum of 6 months with reinstatement conditioned upon the lawyer meeting the requirements for readmission.  Two justices dissented and said that the lawyer should be suspended indefinitely and for a minimum of 12 months.  The dissenting opinion stated it was inappropriate for the lawyer to solicit the bar and judiciary to influence the state supreme court in the case and “(o)ne of these solicitations took the form of an e-mail titled ‘I’m too old for this xxxx!!’ (Expletive deleted.)” The e-mail from the lawyer included what he claimed was a “complete history” of the case which the dissent stated “varies greatly from the facts” found by the disciplinary hearing panel.

Bottom line:   As I stated in my earlier blog, this was very serious misconduct and the opinion makes it clear that the lawyer knew that the documents were obtained without the wife’s permission and did not advise opposing counsel.  Compounding the misconduct, the lawyer used the improperly obtained payroll document to his advantage  at a mediation/settlement conference and may also have been planning to use the direct examination questions to his advantage without opposing counsel’s knowledge until the paralegal included the document with the copies of exhibits by mistake.  The lawyer also sent an e-mail threatening the opposing attorney if she pursued the matter and tried to improperly influence the court.   The sanction may have been more severe in a different jurisdiction.

Be careful out there…and of course, do not do this.

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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Pennsylvania woman who posed as a lawyer for 10 years is convicted of UPL, forgery, and records tampering

Hello and welcome to this Ethics Alert blog which will discuss recent conviction of a Pennsylvania woman who posed as a lawyer for 10 years using fictitious documents and another lawyer’s license number.  The case is Commonwealth of Pennsylvania v. Kimberly M. Kitchen, case number CP-31-CR-0000274-2015 (Court of Common Pleas of Huntingdon County).  The court docket is here:  https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-31-CR-0000274-2015

According to media reports, the woman had been named a partner at a Pennsylvania law firm in April 2014 when her actions were discovered later that year.  She had spent the previous decade working as a lawyer by the time the state attorney general’s office brought charges against her in 2015.  She had also served as served as president of the local county bar association.

According to the criminal charges and media reports, the woman created fictitious bar examination results and a law license and a false check for the state attorney registration fee, and she also created a false e-mail purportedly showing that she attended Duquesne University law school.

The woman handled estate planning for more than 30 clients and even served as president of the county bar association for a time. She made partner at her firm before the fraud was discovered.  Her biography page (which has been deleted) said that she spent a decade as a paralegal at another firm in Pittsburgh and that she graduated summa cum laude from Duquesne law school in Pittsburgh.

A former county bar association president told the Huntingdon Daily News, which first reported on the matter, that by specializing in estate planning on inheritance court documents, the woman was able to stay out of the courtroom.

According to a recent Wall Street Journal report, the woman’s attorney said she would be considering an appeal since, in order to prove the most serious charge of records tampering, prosecutors had to show that someone “relied on the deceit to their detriment.”  The lawyer contends that nobody was harmed by the deception since “apparently everyone was satisfied with (her services) for at least a decade.”  The lawyer also stated that  “(n)obody ever challenged her credentials.”

The judge found the lawyer guilty of misdemeanor UPL, misdemeanor forgery, and felony tampering with a public record/information on March 24, 2016 and did not immediately schedule sentencing.

Bottom line:  This individual appears to have been successful in posing as an attorney for over ten years in Pennsylvania and was made a partner in a law firm and served as a local Bar president using false credentials and a false law license.  Lawyer be wary and be sure to fully investigate any lawyer that you hire.

…and be careful out there.

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

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Ohio Supreme Court permanently disbars lawyer who was videotaped in court practicing law while indefinitely suspended

Hello and welcome to this Ethics Alert blog which will discuss another recent Ohio Supreme Court opinion disbarring a lawyer who was caught on video representing a client in court 3 times, beginning less than three months after his license was indefinitely suspended.  The case is Cleveland Metro. Bar Assn. v. Pryatel, Slip Opinion No. 2016-Ohio-865. (March 9, 2016).  The disciplinary opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-865.pdf and the link to the oral argument in the case is here: http://www.ohiochannel.org/video/case-no-2015-1005-cleveland-metropolitan-bar-association-v-mark-r-pryatel.

According to the opinion, the lawyer was indefinitely suspended in April 2013 for multiple violations of lawyer disciplinary rules, including misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  The lawyer was subsequently recorded on video and audio tapes representing a client (Richard Brazell) in court on three separate occasions in June and July 2013.

The lawyer first attended a probation violation hearing and stood with the client, admitting the probation violation on the client’s behalf, and speaking for the client.  The client’s girlfriend and stepfather testified before the professional conduct board that they paid the lawyer $450.00 for the representation (for both the lawyer’s previous representation and for future representation) and that the lawyer did not inform them that his license was suspended.

Two days after the probation hearing, the lawyer appeared with the client a second time on unrelated charges in another court.  An audio recording of the client’s arraignment indicated the lawyer spoke on the client’s behalf.  He told the magistrate that he was not the client’s attorney and the client was representing himself as the two worked out their business relationship. The magistrate told the board that the lawyer did not indicate that his license was suspended.

About a month later, the lawyer attended a hearing with the client a third time, answered questions on his behalf, and entered a plea to a violation of probation for the client before the judge.  The prosecutor and judge in that case both told the board that they believed that the lawyer was representing the client.  The judge became suspicious and asked his assistant to research the lawyer and found out that he was suspended.

When confronted with the allegations that he had represented the client in a deposition in the Bar matter, the lawyer denied under oath that he appeared with the client at the probation violation hearing or municipal court proceedings, and claimed that he told the client’s family that his license was suspended and that he was not paid for his legal work.  The opinion stated:  “All of these statements (by the lawyer) were later contradicted by testimonial, video, audio, and documentary evidence presented at the disciplinary hearing.”

The board found the following aggravating circumstances: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary process, the submission of false statements during the disciplinary process, and a refusal to acknowledge the wrongful nature of the conduct.  Although the board acknowledged that the lawyer had been involved with the Ohio Lawyers Assistance Program, it found no mitigating factors.

The lawyer objected to the board’s finding that he practiced law while suspended and argued that his actions in the second appearance did not constitute the “practice of law” since he did not advocate for the client, cross-examine any witnesses, cite legal authority, or handle any legal documents.  The opinion rejected that argument and cited Cleveland Bar Assn. v. Comp Management, Inc., a 2006 case stating that the practice of law is not limited to advocacy or filing of legal documents, but also includes representation before a court, preparation of legal documents, management of client actions, all advice related to law, and all actions connected with the law taken on a client’s behalf.  “Here, the evidence demonstrated that the lawyer accompanied the client to the court, stood with him before the bench, spoke on his behalf, waived his legal rights as a criminal defendant, and entered a plea for him.  Under any definition, the lawyer’s appearance on behalf of the client constituted the practice of law.”

The lawyer claimed that he had been “sandbagged” by the bar association which investigated the Bar matter because the case against him did not originally contain the video of his appearance at the probation hearing. The bar association later supplemented its case with the video, and the lawyer had more than two weeks to review it before his disciplinary hearing. The opinion found that the lawyer did not provide any explanation to support the allegation that the introduction of the video prevented him from adequately defending himself against the charges.

The lawyer argued that he should not be disbarred because his actions involved a single client who benefited from his assistance and that he helped the client for “sympathetic and altruistic reasons.”  He also argued that he cooperated during the disciplinary process and had a history of providing quality legal services to indigent clients, and other lawyers charged with the same misconduct were not disbarred.  His lawyer argued at the oral argument that he had psychological and/or other issues and was participating in Ohio’s lawyer assistance program, and that the indefinite suspension should be again imposed.

The majority of the justices disagreed and permanently disbarred the lawyer stating:  “Less than three months after our order forbidding Pryatel to appear on behalf of another before any court, he represented a client in three court proceedings. As the board found, his actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”  Three justices dissented, stating that the indefinite suspension should be continued.

Bottom line: This lawyer had the apparent audacity to represent a client on 3 different occasions and in 2 separate cases beginning less than 3 months after he was indefinitely suspended from the practice of law for, among other things, misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  As the opinion states: “(the lawyer’s) actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”

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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Ohio Supreme Court imposes stayed suspension on former criminal prosecutor who used fictitious Facebook account to contact alibi witnesses

Hello and welcome to this Ethics Alert blog which will discuss the recent Ohio Supreme Court opinion imposing a stayed suspension on an ex-prosecutor who created a fictitious Facebook account to contact alibi witnesses in a criminal case that he was prosecuting.  The case is Disciplinary Counsel v. Brockler, Slip Opinion No. 2016-Ohio-657 (February 26, 2016.  The opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-657.pdf.

According to the opinion, the lawyer doubted the alibi witnesses’ stories and:

“Recalling a Facebook ruse he had used in a prior case, Brockler planned to create a fictitious Facebook identity to contact Mossor. He attempted to obtain assistance from several Cleveland police detectives and the chief investigator in the prosecutor’s office, but they were not available. Believing that time was of the essence, Brockler decided to proceed with the Facebook ruse on his own approximately one hour after he heard the recording of Mossor and Dunn’s conversation. He created a Facebook account using the pseudonym “Taisha Little, a photograph of an African-American female that he downloaded from the Internet, and information that he gleaned from Dunn’s jailhouse telephone calls. He also added pictures, group affiliations, and ‘friends’ he selected based on Dunn’s telephone calls and Facebook page. After creating the Facebook alias, he contacted the alibi witnesses, told them he was romantically involved with the defendant, and discussed the alibi as if it were false.”

The lawyer testified that he made copies of the communications and placed them in a file before deleting the Facebook account. He stated that he intended to give copies to the defense; however, he did not provide them and copies were never found in the prosecutor’s file.  The lawyer told the prosecutor who was taking over the case while he was on a medical leave that he might become a witness since the alibi witnesses said they would not support the defendant’s alibi.  He did not tell the new prosecutor how he obtained that information.

A police detective later discovered the Facebook communications and provided them to the new prosecutor, who provided them to the defense. The case was transferred to the Ohio Attorney General’s office for prosecution and the lawyer was terminated.  Although the lawyer admitted that his actions violated the Bar rules prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation, he argued that an exception should be made for “prosecutorial investigation deception.”  The Ohio Board of Professional Conduct rejected that argument, and the Ohio Supreme Court agreed with the Board’s conclusion.

The opinion said the lawyer’s conduct was “an isolated incident in an otherwise notable legal career” and imposed a one year stayed suspension which will remain stayed unless the lawyer engages in further misconduct.  A dissenting justice stated: “I cannot implicitly condone the imposition of a negligible sanctions for his egregious misconduct”, the lawyer had shown a “glaring disdain” for his ethical responsibilities, and he should receive an indefinite suspension.

Bottom line: This is an example of a prosecutor who went too far in zealously prosecuting a criminal defendant and was disciplined as a result, even though it appears that he believed that he was engaging in the deception to achieve the right result.  With regard to compliance with the Bar rules, the end will never justify the means, and all lawyers need to be wary of going too far and falling down a slippery slope in their representation, whether it is on behalf of the government or individual clients.

Be careful out there.

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

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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