Category Archives: Former client confidentiality

Connecticut lawyer who was sued for malpractice and included client’s psychiatric records in court document suspended for 2 years

Hello everyone and welcome to this Ethics Alert which will discuss the recent 2 year suspension of a Connecticut lawyer who was sued for legal malpractice and released his former client’s psychiatric records in retaliation and to embarrass the client.  The case is Office of the Chief Disciplinary Counsel v. Jason E. Pearl, Superior Court, Judicial District of New Britain, Order 418034, Docket No.: HHBCV186043301S.

The lawyer’s former client, Veronica Perakos, sued him for professional malpractice in December 2014.  According to the complaint, the client hired the lawyer in 2011 to defend her in a lawsuit her condominium association filed regarding alleged failure to pay common fees and monthly special assessment fees.  Her debt to the association was $22,358.00 and the lawyer was alleged to have failed to notify her about the risk of foreclosure if she did not make the monthly payments on the debt.

The lawsuit also claimed the lawyer did not explain to the client what happened after a court hearing, failed to give the client file to the client’s new lawyer in a timely manner, and told the new lawyer that the client’s foreclosure matter would be resolved if she placed the property on the market for a price set by the court.  The lawyer had previously been suspended for 120 days in 2013 for not complying with a random IOLTA audit and the lawsuit claimed that he also failed to notify the client of that audit.

According to court documents, approximately six weeks after the lawsuit was filed, the lawyer filed an electronically filed motion with the court asking that the client be declared “unfit to testify due to her psychiatric history, medical commitment, conservatorship and untruthfulness.” The client’s psychiatric records were also enclosed with the motion without the client’s permission.  According to media reports, the lawyer had represented the client on previous matters, which was how he obtained her medical records dating back to 2006.

The malpractice litigation resulted in a judgment for the client and, after reviewing the information and evidence regarding the publication of the client’s confidential psychiatric records, Superior Court Judge Joan Alexander found as follows:

The Court finds clear and convincing evidence that Jason E. Pearl violated Rule 8.4(4) of the Rules of Professional Conduct. He engaged in conduct that is prejudicial to the administration of justice by his unauthorized public release of a former client’s psychiatric records. The Court finds that the respondent violated Rule 1.9 of the Professional Rules of Conduct in that his conduct was retaliatory and intended to embarrass his former client. As a result of these findings, the Court orders a 2 year suspension on his right to practice law effective immediately. The court orders that the respondent must successfully complete 20 hours of legal ethics training and file notice evidencing the completion of this training. The training must be attended in person and not online. The respondent also must comply with the requirements of Practice Book § 2-47B during his suspension. If the respondent seeks reinstatement to the bar after the period of suspension, he must comply with the procedures outlined in Practice Book § 2-53.

Bottom line:  This case involves a lawyer who was apparently upset that his client had filed a malpractice claim against him and he decided to make an “unauthorized public release of a former client’s psychiatric records”, which “ was retaliatory and intended to embarrass his former client.”

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

Advertisements

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, dishonesty, Former client confidentiality, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline e-filing confidentiality breach, Lawyer enclosing client's confidential psychiatric records in malpractice lawsuit, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer violating confidentiality by placing client medical records into public record

ABA Formal Opinion 479 addresses when lawyers may use “generally known” information related to a former client

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 479, which was published on December 15, 2017 and addresses when a lawyer may use information related to the representation of a former client which is to the actual or potential disadvantage of the former client when the information has become “generally known”.  The ABA opinion is here: ABA Formal Opinion 479

ABA Model Rule 1.9(c)(1) provides that a lawyer “shall not use information relating to former client’s representation to the disadvantage of the former client except as (the Model) Rule would permit or require with respect to a [current] client, or when the information has become generally known.”

The opinion also states that the “generally-known” exception to Rule 1.9 was first included in the 1983 ABA Model Rules; however, there is no consensus regarding when information is “generally known.” New York, Massachusetts, and Illinois Bar opinions and ethics commentators agree that “generally known” means “more than publicly available or accessible. It means that the information has already received widespread publicity.”

According to the opinion, the “generally known” exception to the obligations related to former-client confidentiality is limited to the following:

(1) use of the former client information, not the disclosure or revelation of the information,

(2) use of the information only if the information has become widely recognized by the public in the relevant geographic area or widely recognized in the former client’s industry.

The opinion quotes an ethics commentator:

“[T]he phrase “generally known” means much more than publicly available or accessible. It means that the information has already received widespread publicity. For example, a lawyer working on a merger with a Fortune 500 company could not whisper a word about it during the pre-offer stages, but once the offer is made—for example, once AOL and Time Warner have announced their merger, and the Wall Street Journal has reported it on the front page, and the client has become a former client—then the lawyer may tell the world. After all, most of the world already knows. . ..[O]nly if an event gained considerable public notoriety should information about it ordinarily be considered “generally known.”

The fact that information has been discussed in court or may be accessible in public records does not necessarily make the information widely recognized (and “generally known”) under Model Rule 1.9(c) since information that is publicly available is not necessarily widely recognized and, if a search of court records or library shelves is required to find the information, it would not be  widely recognized.

Bottom line: This ABA opinion provides guidance on important ethics issues related to when a lawyer is permitted to use information that is detrimental to a former client when it has become “generally known” and provides guidance.  Although the opinion (and most state Bar rules) permit lawyers to use, but not disclose, “generally known” information even if it disadvantages a former client, lawyers should always carefully consider whether this would be prudent and, if the lawyer decides to do so, obtain the client’s consent in advance.

This ABA opinion is not binding and the analysis is applicable in most, if not all jurisdictions, including Florida; however, lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

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

 

 

Leave a comment

Filed under ABA Formal Opinion 479 former client confidentiality, ABA Formal Opinion former client confidentiality information that is generally known, ABA formal opinions, Attorney Ethics, Confidentiality, Confidentiality and privilege, Former client confidentiality, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions