Category Archives: Florida Lawyer Professionalism

Florida Supreme Court dismisses Florida Bar’s petition proposing substantial revisions to lawyer referral service rules

Hello everyone and welcome to this Ethics Alert Update which will update my August 1, 2016 Ethics Alert and will discuss the recent Florida Supreme Court Order (May 3, 2017) dismissing the Bar’s petition for approval of the proposed substantial revisions to the Bar Rules related to lawyer referral services.

The proposed rules would have substantially revised the current rules, changed the name of the referral companies to “matching services” and “qualifying providers”, specifically prohibited fee splitting and deleted the disclaimer that the entity is a lawyer referral service.  The proposed rules would not have limited ownership to lawyers only or referrals to lawyers only.

The case is: In Re: Amendments to the Rules Regulating The Florida Bar-Subchapter 4-7 (Lawyer Referral Services, Case No.: SC16-1470 and the Supreme Court’s Order May 3, 2017 is here:  https://efactssc-public.flcourts.org/casedocuments/2016/1470/2016-1470_disposition_138549.pdf

Under the proposed amendments, which were approved by the Florida Bar Board of Governors in 2016, any private entities that connect consumers looking for legal services with lawyers would have been called “qualifying providers” regardless of whether they were “traditional” referral services (such as ASK-GARY or 411 PAIN) or a technology-based provider (such as AVVO or LegalZoom).

The Florida Bar’s website has a page summarizing the proposed rule revisions as well as a frequently asked questions section and comparison chart.  The link to that page is here:  http://www.floridabar.org/proposedlrsamend#Overview.

The May 3, 2017 Florida Supreme Court Order states:

Previously, in In re Amend. to Rule Reg. The Fla. Bar 4-7.22—Lawyer Referral Services, 175 So. 3d 779, 781 (Fla. 2015), the Court rejected amendments to Rule Regulating the Florida Bar 4-7.22 proposed by The Florida Bar and directed the Bar to propose amendments that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.” In this case, the Bar proposes amendments to rule 4-7.22 that do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar. (emphasis supplied).

The Court having considered the Bar’s prior petition, the amendments proposed in this case, the comments filed, the Bar’s response, and having had the benefit of oral argument, the Bar’s petition in this case is hereby dismissed without prejudice to allow the members of this Court to engage in informed discussions with the Bar and those who are in favor or against the proposed regulation of matching and other similar services. The Court lacks sufficient background information on such services and their regulation at this time.

No rehearing will be entertained by this Court.

Bottom line:  As I previously stated, if approved by the Florida Supreme Court, the proposed revisions would have substantially altered the rules for lawyer referral services; however, the proposed rules would not have limited ownership to lawyers nor referrals only to lawyers.  This Order makes it clear that the that the proposed rules “do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include ‘matching services’ and other similar services not currently regulated by the Bar.”

The Florida Bar will now ponder the language of the Supreme Court’s Order in considering potential future proposed lawyer referral rule revisions.  Stay tuned…

…and 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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Filed under Attorney Ethics, Florida Bar 2016 Lawyer referral rule revisions, Florida Bar lawyer referral rule revisions, Florida Bar matching services, Florida Lawyer Professionalism, Florida Lawyer Referral Services, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer matching services Avvo, Uncategorized

Lawyer’s ethical obligations in surrendering client papers and property after termination of representation and asserting retaining liens

Hello everyone and welcome to this Ethics Alert will discuss the lawyer’s ethical obligations to surrender papers and property to which the former client is entitled after termination of the representation and asserting retaining liens.  American Bar Association Formal Ethics Opinion 471 provides a good overview of these ethical obligations.  The July 1, 2015 ABA formal ethics opinion is here: ABA Ethics Opinion 471.

ABA Model Rule 1.16, Declining or Terminating Representation is substantially similar to Florida Bar Rule 4-1.16 and requires lawyers to surrender “papers and property to which the client is entitled.”  Neither the Model Rule of the Florida Bar Rules provide a definition of these terms.

The ABA opinion discusses the approaches taken in various jurisdictions and notes that the majority (including Florida) use the “entire file” analysis, wherein clients are entitled to receive all items in the file unless the lawyer can show that the item would fall under one of the generally accepted exceptions, which include the following:

“ materials that would violate a duty of nondisclosure to another person; materials containing a lawyer’s assessment of the client; materials containing information which, if released, could endanger the health, safety or welfare of the client or others; and documents reflecting only internal firm communications and assignments.”

In Florida, the client file is the property of the lawyer and the lawyer may assert a retaining lien on the client file after the representation is terminated; however, Florida Bar Rule 4-1.16(d) states that, upon termination, the lawyer must surrender papers and property to which the client is entitled, take all steps to mitigate the consequences of the termination to the client, and “may retain papers and other property as security only to the extent permitted by law.”

Florida Ethics Opinion 88-11 (Reconsideration) states:

“Many attorneys are unaware that in Florida a case file is considered to be the property of the attorney rather than the client. Dowda and Fields, P.A. v. Cobb , 452 So.2d 1140, 1142 (Fla. 5th DCA 1984); Florida Ethics Opinion 71-37 [since withdrawn]. Under normal circumstances, an attorney should make available to the client, at the client’s expense, copies of information in the file where such information would serve a useful purpose to the client. Opinion 71-37 [since withdrawn].

In appropriate situations, however, an attorney is entitled to refuse to provide copies of material in the file and instead may assert an attorney’s lien. Such situations include a client’s refusal to reimburse a discharged attorney for the attorney’s incurred costs or to provide a reasonable guarantee to the attorney that the costs will be repaid at the conclusion of the case. See Florida Ethics Opinion 71-57. While in such a situation it may be ethically permissible for an attorney to assert a lien with respect to materials in a case file, the validity and extent of the lien is a question of law to be decided by the courts.

Florida common law recognizes two types of attorney’s liens: the charging lien and the retaining lien. The charging lien may be asserted when a client owes the attorney for fees or costs in connection with a specific matter in which a suit has been filed. To impose a charging lien, the attorney must show: (1) a contract between attorney and client; (2) an understanding for payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute regarding the amount of fees; and (4) timely notice. Daniel Mones, P.A. v. Smith , 486 So.2d 559, 561 (Fla. 1986). The attorney should give timely notice of the asserted charging lien by either filing a notice of lien or otherwise pursuing the lien in the underlying suit. The latter approach is preferred.

Unlike a charging lien, a retaining lien may be asserted with respect to amounts owed by a client for all legal work done on the client’s behalf regardless of whether the materials upon which the retaining lien is asserted are related to the matter in which the outstanding charges were incurred. A retaining lien may be asserted on file materials as well as client funds or property in the attorney’s possession, and may be asserted whether or not a suit has been filed. Mones , 486 So.2d at 561.  Florida Bar Ethics Opinion 88-11 (Reconsideration is here: http://www.floridabar.org/TFB/TFBETOpin.nsf/SMTGT/ETHICS,%20OPINION%2088-11%20(Reconsideration).

An attorney’s right to assert a lien may be limited, however, by the ethical obligation to avoid foreseeable prejudice to the client’s interests. What papers or documents must be furnished to a client in a particular case in order to avoid prejudicing the client’s interest therein will necessarily depend on the specific facts and circumstances involved.

Some  jurisdictions follow the “end product” analysis. Under this analysis, clients are entitled only to those items that are the end product of the representation, and may not be entitled to receive the documents or other materials that led up to the end product.

“…Under these variations of the end product approach, the lawyer must surrender: correspondence by the lawyer for the benefit of the client; investigative reports and other discovery for which the client has paid; and pleadings and other papers filed with a tribunal. The client is also entitled to copies of contracts, wills, corporate records and other similar documents prepared by the lawyer for the client. These items are generally considered the lawyer’s “end product.”

Under this alternative analysis, administrative documents, internal memoranda and preliminary drafts of documents do not have to be returned; however, internal notes and memos may need to be turned over if the final product of the representation has not yet emerged and nondisclosure could harm the client.

Bottom line:  Lawyers must be aware of the requirements of their jurisdictions regarding the return of a client’s file after termination of the representation and before contemplating the assertion of a retaining lien on the client’s file.

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.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

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 ABA formal opinions, Attorney Ethics, Ethics and lawyer withdrawal, Florida Lawyer Ethics and Professionalism, Florida lawyer ethics client file retaining liens, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics retaining liens, Lawyer ethics returning documents to client after termination

Florida Supreme Court permanently disbars lawyer for “defiant and contemptuous conduct”, and practicing while suspended

Hello and welcome to this Ethics Alert which will discuss the October 8, 2015 Florida Supreme Court opinion which permanently disbarred a lawyer for contempt of his previous 2 year suspension order, threats to Bar counsel, and “unrepentant attitude”.  The case is The Florida Bar v. Jeffrey Alan Norkin, Case Nos. SC11-356 and No. SC13-2480.  The opinion is here:  http://www.floridasupremecourt.org/decisions/2015/sc11-1356.pdf

The lawyer was serving a two-year suspension which began in 2013 for “appalling and unprofessional behavior” during litigation over a dispute between business partners. He also received a public reprimand administered by Supreme Court Chief Justice Ricky Polston in 2014.

According to the October 8, 2015 opinion, in the previous disciplinary case:

Respondent made threatening and disparaging statements to a senior judge, who had been appointed to serve as a provisional director by civil trial Judge Dresnick. This misconduct violated Rules Regulating the Florida Bar 4-8.2(a) (a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, or public legal officer) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct). Respondent also demonstrated unprofessional and antagonistic behavior during numerous hearings in the civil case. Respondent’s behavior was offensive to both Judge Dresnick and successor Judge Valerie Manno Schurr. His conduct also disrupted the proceedings, in violation of rule 4-3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal).  Finally, Respondent made approximately ten disparaging or humiliating statements to opposing counsel. Respondent yelled insults at opposing counsel in the hallway of a courthouse in front of other attorneys. Respondent shouted in front of a judicial assistant and other attorneys that opposing counsel was a liar. Such misconduct was in violation of rule 4-8.4(d) (prohibiting an attorney from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against other lawyers on any basis).”

My previous blogs on the 2 year suspension case are here:

https://jcorsmeier.wordpress.com/2013/11/04/florida-supreme-court-suspends-lawyer-for-2-years-for-appalling-and-unprofessional-behavior-including-screaming-at-judges-and-opposing-counsel/

and here: https://jcorsmeier.wordpress.com/2014/09/17/florida-supreme-court-issues-in-person-public-reprimand-to-lawyer-suspended-for-2-years-for-appalling-and-unprofessional-behavior/

The Florida Bar filed a petition for contempt and order to show cause in December 2013 alleging that the lawyer failed to provide the required affidavit attesting to his notification to clients, opposing counsel, and judges that he was suspended.  The Bar filed an amended contempt petition in January 2015 alleging that the lawyer had practiced law after he was suspended by e-mailing opposing counsel regarding a pending case, discussing the results of a hearing, and preparing a pleading for his former client.

The amended contempt petition also requested that the lawyer be sanctioned for sending three offensive and threatening e-mails to Bar counsel and pointed out that the lawyer showed his contempt for the Court through his facial expressions and body language during the public reprimand.  The video of the lawyer’s 2014 public reprimand is here: http://www.wfsu.org/gavel2gavel/viewcase.php?eid=2129

According to the opinion, “(a)t the hearing on the motion for sanctions, the referee questioned Norkin about the e-mails and his behavior during the public reprimand administered by this Court.  In response, Norkin asserted his ‘right to speak freely and to express his beliefs in the manner of his choosing,’ and freely admitted that during the public reprimand, he intentionally smirked and stared down each Justice one by one.”

The referee granted summary judgment on the issue of the lawyer’s alleged practice of law while suspended and failure to notify clients, opposing counsel, and judges that he was suspended, found him in contempt.  For that and other misconduct, including “knowingly or through callous indifference disparaged, threatened, and humiliated bar counsel” by sending threatening e-mails, the referee recommended that the lawyer be disbarred.

The opinion affirmed the referee’s findings that: “Norkin’s e-mails to bar counsel referred to bar counsel as ‘evil’ and ‘despicable’; called the proceedings against him ‘the most unjust act in judicial history’; stated that bar counsel had no conscience; and stated, ‘I’m preparing the lawsuit against you. Keep an eye out.’”

The opinion further stated: “Given Norkin’s continuation of his egregious behavior following his suspension and during the administration of the public reprimand, we conclude that he will not change his pattern of misconduct.”  “Indeed, his filings in the instant case continue to demonstrate his disregard for this court, his unrepentant attitude, and his intent to continue his defiant and contemptuous conduct that is demeaning to this court, the court’s processes, and the profession of attorneys as a whole.”  The opinion affirmed the referee’s recommendation and permanently disbarred the lawyer.

Bottom line:  This opinion (presumably) concludes the very long saga of this lawyer’s prosecution by The Florida Bar and makes it clear that this lawyer continued to engage in extreme and outrageous behavior and practiced law after he was suspended and failed to comply with the suspension terms, which resulted in his permanent disbarment.

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 Supreme Court disbars former judge for extensive texting with prosecutor while presiding in murder trial and for “dishonest conduct”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Florida Supreme Court opinion disbarring a lawyer and former judge for extensive texting with a prosecutor at the same time that she was the presiding judge in the prosecutor’s first degree murder trial. The opinion is The Florida Bar v. Ana I. Gardiner, No. SC11-2311 (June 5, 2014) and the Supreme Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2014/sc11-2311.pdf#search=gardiner

According to the opinion, the former judge/lawyer was the presiding judge in State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder case and former prosecutor Howard Scheinberg was the lead prosecutor in the case.

On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder and the former judge/lawyer presided over the penalty phase on April 30 and May 1, 2007, which resulted in a jury recommendation of the death penalty. On August 24, 2007, the former judge/lawyer entered an order sentencing Loureiro to death.

The referee’s report found that on March 23, 2007, several days before the jury returned its guilty verdict, the former judge/lawyer was having dinner at a restaurant when she accidentally encountered the prosecutor. After dinner, the former judge/lawyer, the prosecutor and some others decided to go to a bar and the prosecutor drove to the bar with a law student.

During the drive, the law student raised the appearance of impropriety that might exist if the presiding judge and the lead prosecutor in a pending murder trial socialized while the case was ongoing. The prosecutor was upset by this and left the bar shortly after arriving. The referee found that the former judge/lawyer tried to find out what had upset the prosecutor and spoke with him on the telephone several times during the following weekend.

The trial continued on Monday, March 26, 2007 and the former judge/lawyer did not disclose her interaction with the prosecutor on the record. On March 27, 2007, after the jury returned a guilty verdict, the former judge/lawyer and the prosecutor had a lengthy telephone conversation, wherein the prosecutor told the former judge/lawyer about his discussion with the law student on the way to the bar; however, according to the referee’s report, the former judge/lawyer assured the prosecutor that there was nothing to worry about and that she made a “conscious decision” not to disclose her social interaction and telephone calls.

The referee that the former judge/lawyer and the prosecutor began a “significant personal and emotional relationship” and, between March 23 and August 24, 2007, the day that the former judge/lawyer imposed a sentence of death, she and the prosecutor exchanged 949 cell phone calls and 471 text messages. On the day before, the day of, and the day following the imposition of the death sentence, the former judge/lawyer and the prosecutor communicated by telephone and text 44 times and the former judge/lawyer “deliberately and knowingly chose not to disclose this emotional relationship to the defense, despite her clear duty to do so.”

Loureiro’s attorneys filed a direct appeal to the Florida Supreme Court and soon after, media began reporting allegations that the former judge/lawyer and the prosecutor had met socially at a restaurant and a bar during the murder trial. The Court sent the matter back to the circuit court to consider the communications between the former judge/lawyer and the prosecutor, and determine whether a new trial should be ordered. The Broward County State Attorney’s office hired a special prosecutor to conduct the investigation and, on April 30, 2009, the former judge/lawyer appeared for a deposition. During her deposition testimony, she acknowledged for the first time her ongoing emotional relationship with the prosecutor. The State Attorney’s office eventually agreed to a new trial in the case. At the second trial, Loureiro was convicted and sentenced to life in prison.

In November 2008, the Judicial Qualifications Commission appointed a panel to investigate and determine whether the former judge/lawyer engaged in misconduct. The former judge/lawyer appeared before the panel in late November 2008 and, according to the referee, she “failed to disclose the honest and true nature of her relationship with the prosecutor.” In April 2010, the former judge/lawyer resigned as a circuit judge.

The referee found that the former judge/lawyer’s testimony would “leave any reasonable person with the misimpression that her relationship with (the prosecutor) was merely professional. She did not disclose their emotional relationship or the significant number of personal phone and text communications they exchanged during the penalty phase of the Loureiro trial. She also did not disclose that her relationship with (the prosecutor) continued after the trial and intensified. During the period from March 2008 through August 2008, former judge/lawyer and the prosecutor exchanged more than 3000 phone and text communications. The referee further found that former judge/lawyer’s testimony during the JQC proceedings was a ‘deliberate act of dishonesty and deceitfulness.’”

The referee recommended that former judge/lawyer be found guilty of violating three Florida Bar Rules, 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline) and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

After considering aggravating and mitigating circumstances, the referee recommended that the former judge/lawyer be suspended from the practice of law for one (1) year and pay the Bar’s costs. The Bar filed a Petition for Review and requested that the former judge/lawyer be disbarred. The Supreme Court opinion discussed the former judge/lawyer’s “dishonest conduct” and the harm it caused at length and “(c)onsidering (the former judge/lawyer’s) dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction.”

Bottom line: As many of you may already know, this was an extremely high profile, media intensive case involving allegations of very serious (and somewhat inexplicable) conduct/misconduct by the presiding judge and prosecutor in a first degree murder trial in south Florida. It is also another disciplinary case wherein the Florida Supreme Court significantly increased a referee’s recommendation discipline, this time from a one (1) year suspension to disbarment.

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, Florida Bar, Florida judge ethics, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, fraud, joe corsmeier, Joseph Corsmeier, Judicial ethics, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false testimony, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions

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

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

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

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

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

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

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

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

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

Bottom line: As it is with personal digital/internet communication (including e-mail, texting, and facebook etc.), this is a clear example of how the internet can make it much too easy to react quickly and badly to a perceived slight, such as a bad client internet review. Before responding to any internet postings, a lawyer must seriously consider the ethical implications and not act impulsively, which this lawyer apparently did.

Let’s be careful out there.

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

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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

Florida Bar’s Board of Governors approves guidelines for advertising past results and revokes informal advisory opinion stating that LinkedIn violates Bar Rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent decisions of the Florida Bar Board of Governors, including approval of guidelines for advertising past results and revoking the staff advisory opinion stating the LinkedIn violates Bar Rules.  The Guidelines for Advertising Past Results are attached and are here: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/FB68CB88389B9FC785257C430053B5F9/$FILE/guidelines%20past%20results.pdf?OpenElement

The Florida Bar’s Board of Governors (BOG) met on December 13, 2013 and, based upon a recommendation of the BOG Review Committee on Professional Ethics, approved proposed guidelines for advertising past results under the 2013 revised advertising rules.  The BOG also voted to revoke the September 2013 staff advisory opinion/letter stating that the use of LinkedIn violates Florida Bar Rules and requested the Standing Committee on Advertising to prepare an advisory opinion on the use of the LinkedIn social and professional networking site by Florida lawyers.

Some of the most significant sections of the guidelines are below: 

“When an advertisement includes a dollar amount and language or an illustration that indicates that a client has received the specific amount (“My lawyer got me $X” with a photograph of a person receiving money), the dollar amount must be the net amount received by the client. The net amount is the amount after deductions for attorneys’ fees and litigation-related expenses.”

“An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2).”  Examples include failure to disclose that a civil verdict was overturned on appeal or claiming that an acquittal on one or more criminal charges was successfully obtained without disclosing that the client was convicted of other crimes in the same matter.

“Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results.”

“Statements regarding collective or aggregated results about the amount of recovery are impermissible under Rule 4-7.13(a) because they are inherently misleading as there is no way for the viewer to know how many cases, clients, and/or lawyers are involved or the amounts and facts of individual matters that would permit consumers to make informed decisions regarding them.”

Bottom line:  This is a significant development in the ongoing evolution of the Bar’s position on the 2013 revised advertising rules and lawyers’ use of social media.  All Florida lawyers should carefully review the past results guidelines (which are important but not mandatory or binding).  Although the revocation of the informal opinion does not necessarily change the Bar’s position that the terms “Specialist” and Skills and Expertise” cannot be used by lawyers other than those who are Board certified, the fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant.  Stay tuned…

…and let’s be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

 

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer advertising rules, Lawyer advertsiing twitter advertising and solicitation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions Linkedin.com, Lawyer responsibilities AVVO and Linkedin, Lawyers and social media