Category Archives: Florida Supreme Court

Florida Supreme Court rejects any Bar rule prohibiting lawyers from belonging to private services which refer to both lawyers and doctors

Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court Opinion which rejected any Bar rule prohibiting lawyers from belonging to private services which refer to lawyers and doctors. The case is In Re: Amendments to Rule Regulating The Florida Bar 4-7.22, Case No SC18-881.  The April 15, 2019 opinion is here: https://efactssc-public.flcourts.org/casedocuments/2018/881/2018-881_disposition_145774_d25.pdf

A majority of the Florida Supreme Court (with Justice LaBarga dissenting) rejected any Bar rule that would have prohibited lawyers from belonging to services that refer callers for legal and other services stemming from the same incident.  In 2018, the Court issued an opinion implementing the Bar’s proposed qualifying provider rules and directed the Bar to draft and submit an additional rule prohibiting lawyers from using qualifying providers offering legal and other services stemming from the same event.

The April 15, 2019 opinion stated that, when the Court recommended a revision of Florida Bar Rule 4-7.22 last March, a majority of those justices wanted to further expand the rule to prohibit attorneys from belonging to referral services (now called qualifying providers) which refer callers for both legal and nonlegal services needed from the same event.  Those legal services are typically related to accidents or injuries where the callers need both medical and legal help.

The opinion referred to Justice Lawson’s partial dissent in the 2018 opinion and dismissed the case.  In his partial dissent in that case, Justice Lawson wrote that he disagreed with the majority only on requiring the Bar to submit a new rule banning lawyers from belonging to entities that also referred callers to other professional services emanating from the same incident. He noted the Special Committee on Lawyer Referral Services initially made that proposal in 2012. The Board of Governors considered that recommendation but instead voted that making certain disclosures to the client was sufficient.

In his partial dissent from the April 15, 2019 opinion, Justice Labarga noted that, in the 2018 opinion, “(the Court) comprehensively amended rule 4-7.22 to establish a single regulatory scheme under which lawyer participation in services that connect prospective clients to lawyers, such as matching services, are subject to the same restrictions as lawyer referral services, legal directories, and other similar services regulated by The Florida Bar.”

“Nevertheless, we expressed continued concern with respect to how certain lawyer referral services operate in Florida, particularly those that refer prospective clients to other professionals and occupational disciplines for services arising out of the same incident or transaction. I concurred in the conclusion that additional measures were needed to safeguard against potential harm…in my view, the amendments the majority rejects today are critical to ensure all services that connect prospective clients to lawyers first and foremost operate in a manner that protects and furthers the public interest.”

The dismissal of the pending case ends a multiple year review of the Bar’s lawyer referral service rules, which began when the Special Committee on Lawyer Referral Services of the Florida Bar’s Board of Governors (BOG) submitted a report in 2012.  That report recommended stricter regulation of for-profit referral services and participating lawyers and among its recommendation was a prohibition of lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident.

The BOG rejected the recommendation that lawyers be prohibited from lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident stating that disclosures to the client were sufficient along with a requirement that the lawyer making such a referral must believe it is in the client’s best interest.

The Bar submitted those proposed revised rules to the Court in 2014.  The Court rejected those amendments and directed the Bar to submit a rule that required that all for-profit referral services be owned or managed by a Bar member and that lawyers could not belong to services that also referred callers for nonlegal work resulting from the same incident.

The BOG committee then redrafted the previously proposed rules and defined any company or service that links a lawyer and potential client as a “qualifying provider” when the participating lawyers are subject to Bar rules; however, the BOG rejected the proposed requirement that a Bar member own or manage a for-profit service or a prohibition on lawyers belonging to qualified providers that refer to others. Those revised proposed rule revisions were submitted to the court in 2016 and oral arguments were held in 2017.  Some justices closely questioned the Bar representative about the Bar’s failure to follow its earlier instructions.

Bottom line:  The issue of whether lawyers can participate with for profit services which refer to both lawyers and medical providers has been settled…for now.  Lawyers can continue to participate in such services and those services do not have to be owned solely by lawyers.

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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Florida Bar obtains emergency suspension of lawyer for “waging a personal and public war on social media”

Hello everyone and welcome to this Ethics Alert which will discuss the recent emergency suspension of a Florida lawyer for allegedly “waging a personal and public war on social media against attorneys representing clients” and “resort(ing) to terrorist legal tactics.”  The case is: The Florida Bar v. Ashley Ann Krapacs, Case No.: SC-277 Lower Tribunal No(s) 2018-50,829 (17I)FES; 2018-50,851(17I);2019-50,081(17I) and The Florida Bar’s Petition for Emergency Suspension is here: https://efactssc-public.flcourts.org/casedocuments/2019/277/2019-277_petition_72430_petition2dsuspension2028emergency29.pdf

According to the Petition, the lawyer “launched an attack of massive and continuous proportions” on social media and “(c)learly, respondent’s fury has no bounds.” The lawyer’s alleged “terrorist legal tactics” began after she moved to Florida and initiating a petition for a domestic violence injunction against a former boyfriend in Texas and lawyer Russell Williams represented the ex-boyfriend.  The lawyer dismissed the case; however, she then allegedly “began a social media blitz” on Facebook, Instagram, LinkedIn and YouTube.

The lawyer allegedly called  Williams an “old white male attorney” and a “bully attorney” who had threatened to file a motion for sanctions against her if she did not dismiss the case.  She also stated that “opposing counsel flat-out LIED” and the judge ‘didn’t bat an eye.’”.  She also allegedly used the hashtag #holymisogyny on social media when talking about the case and accused the judge of membership in the “Old Boys Club.”

The lawyer also allegedly continued the misconduct in a YouTube video posted after Williams hired lawyer Nisha Bacchus to represent him and filed a lawsuit against the lawyer for Libel, Slander, Malicious Prosecution and Injunctive Relief.  In the video, the lawyer allegedly called Williams “a moron and a sexist and a bully” and said Bacchus was “a backstabbing traitor” for representing “misogynist pigs, misogynist bullies.”  “Also, she’s a door lawyer. Which is basically a lawyer who takes anything that walks in the door in any area of law.  Because you can’t do every area of law and do them all well. You just can’t. Some people try and they end up like Nisha Bacchus who are so hard up that they’ll take anything, including shit like this. So I almost feel bad for her because he’s playing her. It is really obvious from the way that she presents herself that she’ll take anything if the price is right. Or even if it’s not.”  The lawyer also used hashtags #sellout and #womanhater for Bacchus.

The Petition states that the lawyer made multiple posts on Facebook “accusing The Florida Bar of being corruptly influenced by Nisha Bacchus. Bacchus requested a domestic violence injunction against the lawyer after she posted a Home Alone meme showing a shotgun pointed at an individual and added the caption “when opposing counsel tries to use the same exact trick you saw in your last case.”  According to the Petition, “(o)n February 1, 2019, Judge Moon granted an indefinite Final Judgment of Injunction for Protection Against Stalking against (the lawyer) as a result of her actions toward Nisha Bacchus”

The Florida Supreme Court granted the emergency petition in an Order dated February 27, 2019 with 2 of the court’s seven justices dissenting and stating that they would not grant it.  The February 27, 2019 Supreme Court Order suspending the lawyer on an emergency basis is here:  https://efactssc-public.flcourts.org/casedocuments/2019/277/2019-277_disposition_145483_d31i.pdf.  A referee will be appointed.

Bottom line:  This Petition is highly unusual and there may be a question as to whether such conduct constitutes “great public harm” under the Florida bar Rule.  It will certainly be interesting to see how this drama plays out.

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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Filed under Attorney discipline, Attorney Ethics, false statements, Florida Bar, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer discipline social media misuse, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics Facebook, Lawyer false statements, Lawyer sanctions for lying and posting on social media, Lawyer social media ethics, Lawyers and social media

Florida Bar Supreme Court opinion provides guidance regarding ethical payments to fact witnesses in litigation

Hello everyone and welcome to this Ethics Alert which will discuss the recent (December 28, 2018) Florida Supreme Court opinion which discusses the ethical requirements surrounding witness fees and guidance lawyers regarding Florida Bar Rule 4-3.4(b) which prohibits inducements to fact witnesses to testify.  The case is: Trial Practices, Inc. v. Hahn Loeser & Parks, LLP etc. No. SC17-2058 and the opinion is here: https://www.floridasupremecourt.org/content/download/425462/4585484/file/sc17-2058.pdf

The underlying case involved a dispute between two business partners.  One of the partners hired Trial Practices, Inc. (TPI) for consulting services in the litigation, which ended in a mistrial and was later settled.  After the settlement, TPI claimed the 5% fee based on the value of certain transferred property and the settlement of related litigation involving the partners.

The partner denied owing TPI the 5% fee and claimed that the settlement agreement was a “walk away” agreement with no “gross recovery” to either side.  TPI then sued the partner for breach of the consulting agreement and, in the trial that followed, the jury found for the partner on all issues.  The partner then pursued attorney’s fees and costs from TPI, which challenged the costs, including approximately $236,000.00 paid to “seven fact witnesses’ professional firms,” some of which helped prepare the settlement agreement in the original litigation.

The Second District Court of Appeal upheld most of the trial court’s award of costs and fees to the partner, but certified a question to the Supreme Court as to whether Bar Rule 4-3.4(b) allows payments to witnesses for case and discovery preparation.  The court slightly rephrased the certified question as: 

Whether under the Bar rule a fact witness could be paid for “case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings.” 

The opinion (written by Justice Charles Canady) answers that question in the negative and cautioned lawyers to be careful when compensating witnesses to avoid any perception they are trying to influence the testimony in violation of Florida Bar Rule 4-3.4(b).  That rule prohibits offering inducements to witnesses except for expenses related to testifying, a reasonable fee for expert witnesses, and the language in the pre-2014 version at issue in the case, “reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings…”.  Bar Rule 4-3.4 was amended in 2014 to remove “reimburse” and “loss of compensation” from the language since that language arguably prohibited lawyers from compensating witnesses who have no income.

The opinion states that Rule 4-3.4(b) involves the balancing of concerns over offering or paying inducements for testimony and recognizing the value of the time expended by the witness and providing an incentive to assist with the “truth-seeking function of the trial process.”

“Athough we conclude that ‘preparing for, attending, or testifying at proceedings’ can reasonably be interpreted to include certain ‘assistance with case and discovery preparation,’ we also reiterate the importance of rule 4-3.4(b) and the prohibition against improperly influencing witnesses…(o)ur disciplinary cases have repeatedly noted – both in the context of rule 4-3.4(b) and otherwise – the importance of avoiding even the appearance of improper influence. Although we do not find these disciplinary cases to be on point, we emphasize the narrow nature of the issue we address here.”

Further:

“permitting payments for any type of ‘assistance with case and discovery preparation’ would not only be inconsistent with the rule’s plain language but could open the door to purchasing testimony under the pretext of such ‘assistance’ and compromise the integrity of the fact-finding process – the very thing rule 4-3.4(b) is designed to prevent. We thus decline to broadly conclude that ‘assistance with case and discovery preparation’ is subsumed within ‘preparing for, attending, or testifying at proceedings…(h)owever, we also recognize – as this case demonstrates – that there is room for overlap between the two categories. We therefore also decline to adopt a view that effectively treats the two categories as mutually exclusive.

“We think the more appropriate inquiry is whether the witness’s ‘assistance with case and discovery preparation’ is directly related to the witness ‘preparing, attending, or testifying at proceedings.’ Although less than perfectly precise, viewing the payments through that narrower lens is consistent with the language of the rule and avoids prejudicing parties in highly complex cases such as this where they are dependent upon professionals.”

The opinion remanded the case to the trial court for further proceedings consistent with the decision.

Bottom line:  This opinion attempts to clarify the rule regarding ethical payments to fact witnesses in litigation which are not improper inducements and concludes that payments to fact witnesses are permitted only when the assistance of the witness with the case and discovery preparation is directly related to the witness preparing, attending, or testifying at proceedings.

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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Florida Supreme Court approves amended rule permitting lawyers to charge clients for actual merchant credit costs

Hello everyone and welcome to this Ethics Alert, which will discuss the recent (1/4/19) Florida Supreme Court opinion approving a revision to Florida Bar Rule 4-1.5(h), which will permit lawyers to charge a client the actual cost of accepting a credit payment. The amended rule(s) become effective March 5, 2019.

The Florida Supreme Court issued the opinion after The Florida Bar filed an omnibus petition proposing amendments to various Rules Regulating The Florida Bar.  The opinion approved the proposed amendment to Bar Rule 4-1.5(h) as follows:

“to replace the provision that “[n]o higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in a credit plan” with a statement that “[l]awyers may charge clients the actual charge the credit plan imposes on the lawyer for the client’s transaction.” By so doing, we hereby allow lawyers to pass on the actual costs resulting directly from a client’s choice to pay a bill or invoice with a credit card, or make payments under a credit plan, to that client.”

Bottom line:  When it becomes effective on March 5, 2019, Florida Bar Rule 4-1.5(h) will permit lawyers to charge the client the actual credit merchant charges.  This reverses the prior rule, which specifically prohibited charging the client for such merchant costs.

Be careful out there.

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

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

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Florida Bar Board of Governors Ethics Committee will reconsider proposed revised Bar rules to prohibit misleading digital advertising

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar Board of Governors’ (BOG) Professional Ethics Committee’s review of a proposal to amend Florida Bar Rule 4-7.13 to prohibit certain misleading digital advertisements at its December 2018 meeting.  A December 1, 2018 Florida Bar News article on the topic is here:  https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2Faac68d1f3167d80a85258347004f574f

The BOG Review Committee on Professional Ethics has scheduled a review of proposed Florida Bar Rule 4-7.13 revisions to address a common digital advertising practice known as search engine optimization offered by Google AdWords which allows an advertiser to use a competitor’s name to drive search engine traffic to the advertiser’s website.

The BOG ethics committee previously narrowly voted down a proposal to add Bar Rule 4-7.13(c) at its June 2018 meeting which would have stated that “it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the internet or other media, including directly or through a group advertising program.”

The proposed rule to be reviewed by the BOG ethics committee contains an alternative proposal that would prohibit  advertisements from stating or implying that a lawyer is affiliated with the advertising lawyer or law firm in a way that misleads a person searching either for a particular lawyer or law firm or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

The proposed rule revision is below with the new language in italics.

RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING ADVERTISEMENTS

(b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain:

(11) a statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

Bottom line:  This proposed revised advertisement rule revision would address a common digital advertising practice known as search engine optimization offered by Google AdWords which allows an advertiser to use a competitor’s name to drive search engine traffic to the advertiser’s website, which has been alleged to be a violation of the Florida Bar Rules.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

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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Filed under Attorney Ethics, Bar rules deceptive and misleading advertisements Google AdWords, Florida Bar, Florida Bar rule using GoogleAds words to misdirect to another firm, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer misrepresentation, Lawyer using GoogleAd words to misdirect users, Lawyer websites deceptive and misleading practices for SEO, misleading advertisement

Florida Supreme Court opinion finds that social media friendship with lawyer alone is not sufficient to disqualify judge

Hello everyone and welcome to this Ethics Alert which will discuss the recent (11/15/18) Florida Supreme Court opinion which found that social media friendship with a lawyer, standing alone, is not sufficient to disqualify a judge.  The case is Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, No. SC17-1848 (Fla. November 15, 2018) and the opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc17-1848.pdf

In the split opinion, the Florida Supreme Court resolved a conflict between Florida Districts Courts of Appeal as to whether a judge must be disqualified if he or she is a “Facebook friend” with a lawyer appearing before the judge. The Third and Fifth Districts had held that social media friendship alone was not a sufficient basis to disqualify a judge.

The Fourth District, however, held that recusal is required when a judge is a Facebook “friend” with a criminal prosecutor.  The opinion discussed the previously held principle of Florida law that a “traditional friendship” between a judge and an attorney, without more, is not sufficient to disqualify a judge and extended that principle to social media friendships, finding that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”  The opinion did caution that “particular friendship relationships may present such circumstances requiring disqualification.”

According to the opinion, the states of Arizona, Kentucky, Maryland, Missouri, New Mexico, New York, Ohio, South Carolina, and Utah have also found that a social media friendship between a judge and an attorney appearing before the judge standing alone, is not sufficient to disqualify the judge; however, a “minority” of states have found that social media friendships between judges and attorneys create an “appearance of impropriety” and may be prohibited.  The opinion lists the states of California, Connecticut, Massachusetts, and Oklahoma as taking this position, along with Florida Judicial Ethics Advisory Opinion 2009-20 (which may now be withdrawn or revised).

The opinion concluded:

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification.

Bottom line:  This Florida Supreme Court opinion (which was a split 4-3 decision) concludes that Florida judges are not subject to disqualification merely for being a “friend” of a lawyer on social media (specifically Facebook); however, there may be additional factual circumstances which may require disqualification.

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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