Category Archives: joe corsmeier

ABA formal ethics opinion provides guidance for recusal of judge because of a personal relationship

Hello everyone and welcome to this Ethics Alert, which will discuss ABA Formal Opinion 488, which provides guidance on a judge’s obligation to recuse because of a social or close personal relationship with a lawyer or party.  ABA Formal Opinion 488 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_488.pdf

According to the opinion, which was released on September 5, 2019, a judge is not required to automatically recuse or be disqualified if a lawyer or party in a matter before the judge is an acquaintance or friend; however, recusal or disqualification is necessary when the judge is in a close personal relationship with a lawyer or party in a matter.

Formal Opinion 488 interprets the Model Code of Judicial Conduct Rule 2.11, which requires judges to identify situations where their impartiality might reasonably be questioned—an age-old and fluid determination, beyond the specific provisions in Rule 2.11(A)(1)-(6).  The opinion states “that relationships vary widely, potentially change over time, and are unique to the people involved.” As such, the opinion trifurcates judge’s social interactions and relationships into (1) acquaintanceships; (2) friendships; and (3) close personal relationships.

Rule 2.11(A)(1) addresses the standard of when “impartiality might reasonably be questioned.” In addition, Rule 2.11(A)(2) specifies situations where “the judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.”

The opinion notes that a judge must recuse or be disqualified when the judge has or pursues a romantic relationship with a lawyer or party in a matter; however, other “close personal relationships” (such as amicably divorced individuals who maintain joint custody), require that the judge follow Rule 2.11(C), which permits disclosure and waiver of the recusal.

Under Rule 2.11(C), a judge subject to disqualification because of a friendship or close personal relationship may disclose on the record the basis of the potential disqualification and ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive the disqualification.  If the parties and lawyers agree after the disclosure (and without participation by the judge or court personnel), that the judge should not be disqualified, the judge may participate in the proceeding. The stipulation must be incorporated into the record of the proceeding.

The opinion states that a close personal relationship is covered by Rule 2.11(A)(2) and requires disqualification, but acquaintances do not.  Further, whether friendships should result in disclosure and recusal depends on the specific facts. The opinion does not address social media (such as Facebook “friendships”) and states that interaction on social media does not itself indicate the type of relationship participants have with one another either generally or for purposes of the opinion.

Bottom line:  This opinion provides guidelines for judges (and lawyers) on a judge’s obligation to recuse (or be subject to disqualification) because of a social or close personal relationship with a  lawyer or party.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under ABA formal opinions, ABA opinion 488 recusal of judge because of personal relationship, joe corsmeier, Joseph Corsmeier, Judicial ethics, Uncategorized

Utah Supreme Court approves pilot program to permit non-traditional legal services, including non-lawyer firm ownership

Hello everyone and welcome to this Ethics Alert, which will discuss the unanimous Utah Supreme Court approval of a pilot program to permit non-traditional legal services, including non-lawyer firm ownership.  The report of the Utah Work Group on Regulatory Reform titled Narrowing the Access-To-Justice Gap by Reimagining Regulation is here:  https://www.utahbar.org/wp-content/uploads/2019/08/FINAL-Task-Force-Report.pdf

In an opinion dated August 29, 2019 (which is not yet published), the Utah Supreme Court voted unanimously to approve the recommendations of the work group which called for “profoundly reimagining the way legal services are regulated in order to harness the power of entrepreneurship, capital, and machine learning in the legal arena.”

The work group proposed the creation of a new structure in Utah for the regulation of legal services that would provide for broad-based investment and participation in business entities that provide legal services, including non-lawyer investment in and ownership of these entities.  The report stated that this goal should be achieved in two ways:

  1. Substantially loosening regulatory restrictions on the corporate practice of law, lawyer advertising, solicitation, and fee arrangements, including referrals and fee sharing and;
  1. Simultaneously establishing a new regulatory body, under the supervision of the Supreme Court, to advance and implement a risk-based, empirically-grounded regulatory process for legal service entities.

The Utah Supreme Court’s approval of the recommendations begins the first stage the report’s recommendations, which includes the creation of an implementation task force that will establish the new regulatory body as a pilot program that will be in place for about two years. The regulatory body will work with the Utah State Bar, which will continue to maintain its authority over lawyers and licensed paralegal practitioners (LPPs) and regulate non-traditional legal services which is not currently allowed under Utah’s rules.

Stage one of the plan also includes the creation of a “regulatory sandbox” which will be managed by the new regulating body, and will allow a limited market of non-traditional legal entities to provide legal services in the state. According to the report, “The goal is to allow the Court and aspiring innovators to develop new offerings that could benefit the public, validate them with the public, and understand how current regulations might need to be selectively or permanently relaxed to permit these and other innovations.”

The report also requested the Supreme Court to order three changes that would allow the pilot to operate as part of the first stage, including:

  1. Creation of the regulating body as an implementation task force of the court and delegate regulatory authority to set up and run the regulatory sandbox;
  2. Establish that providers approved to participate in the regulatory sandbox are not engaged in the unauthorized practice of law in Utah; and
  3. Establish that lawyers will not be subject to discipline for entering into business with or otherwise providing services with providers in the sandbox.

The court has not issued a written order and a Utah Supreme Court Justice who was on the Task Force stated that he expects the court to issue a press release soon providing further details.

As I previously blogged, the Utah Supreme Court previously approved Limited License Practitioner Rules which became effective November 1, 2018 and the first LLPs in Utah were expected to be licensed in 2019.  This makes Utah the most recent state to license non-lawyers to practice law and will allow LLPs practice without a lawyer’s supervision in three areas, including matters involving temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change, matters involving forcible entry and detainer, and debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.  LLPs will not be permitted to appear in court on behalf of a client.

Bottom line:  This is a very significant step toward the acceptance of non-traditional and non-lawyer practice in Utah and in the United States.  All of the states which have approved such rules are in western states, so far.  The beat goes on…stay tuned.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under 2018 Utah rules permitting non-lawyer legal practice, 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer sharing fees with non-lawyers, Non-lawyer ownership, Non-lawyer ownership of law firms, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized

Florida Bar Board of Governors approves Bar rule revision prohibiting misleading law firm information in all advertisements

Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar Board of Governors (BOG) approval of revisions to Florida Bar Rules 4-7.13 which would prohibit misleading law firm information in advertisements.

The BOG unanimously approved the proposed rule revisions amending Florida Bar Rule 4-7.13 to prohibit misleading digital advertisements.  As I previously reported, the BOG ethics committee previously voted down a proposal to add Bar Rule 4-7.13(c) 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 revised Bar rule does not address purchasing a competitor’s name through Google AdWords but would prohibit all 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.

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.

The revised rule also includes a subsection (12) setting forth “Examples of Deceptive or Inherently Misleading Advertisements.”

(12)  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 knowingly contact a different lawyer or law firm.

The Florida Bar will now file a Petition including revised Rule 4-7.13 will now be filed with the Florida Supreme Court, which will review it and determine whether to implement the proposed rule.

Bottom line:  As I previously blogged, if the BOG takes final action on the proposed revised Rule 4-7.13 prohibiting all of these types of misleading advertisements (and if the Florida Supreme Court implements the revised rule), this would be consistent with other jurisdictions that have considered the issue.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

Leave a comment

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California ethics opinion addresses issues related to a lawyer accepting damaging document provided by a witness

Hello everyone and welcome to this Ethics Alert, which will discuss the recent California ethics opinion which addresses ethics issues related to accepting a damaging document provided by an individual (witness).  The ethics opinion is Los Angeles County Bar Association (LACBA) Ethics Opinion 531 (July 24, 2019) and is here: https://www.lacba.org/docs/default-source/ethics-opinions/archived-ethics-opinions/ethics-opinion-531.pdf

The detailed opinion sets forth the scenario when a lawyer is offered access, by a witness who is an unrepresented former employee of the opposing party, to potential documentary evidence and is advised that it will show the adverse party’s failure to comply with discovery obligations.  The opinion discusses whether the lawyer can and/or should ethically use the document and “the ethical risks and potential adverse consequences of taking possession or reviewing the material are significant” when there is “reasonable cause” to believe that the document contains protected or privileged information.

According to the opinion, the lawyer must first determine whether the individual violated the law by obtaining or possessing the materials.  If the lawyer does not have the competence to make that decision, he or she should consult with another lawyer who has knowledge of criminal law. If a law was violated and the lawyer obtains the document, he or she may be ethically required to turn over the document to the court or to the appropriate legal authorities.

The lawyer should also address whether the document or data includes material that is subject to protection under the attorney-client privilege, confidentiality, or the attorney work-product doctrine. If it becomes “reasonably apparent” to the lawyer that the documents are privileged, the lawyer would be ethically obligated to stop reviewing the document and provide notice to the privilege holder, the owner of the work product, or their counsel.

The lawyer should also keep the client informed when receiving the evidence is a significant development or if it limits the actions that the lawyer is able to take and the lawyer may be required to inform the client about the impact of any dispute over entitlement to the evidence, including the potential financial impact, including legal costs, and potential delay.  The lawyer should also consider other issues to be reviewed and discussed with the client, which would include the possibility of the lawyer being disqualified from the case and possible sanctions that could adversely affect the client’s case.

Bottom line: This California ethics opinion provides a good overview of the ethical issues (i.e. minefields) which are present when an individual tries to provide the lawyer with an alleged “smoking gun” document and discusses what the lawyer should do to protect him or herself ethically.

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, attorney/client privilege, California Ethics Opinion accepting damaging document from witness, Ethical duties using potentially improperly obtained document, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer lack of competence, Lawyer lack of diligence, Lawyer negligence, Uncategorized

Florida Supreme Court approves revised Bar advertising rule with requirements for lawyers to call themselves “experts” or “specialists”

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion approving (with minor revisions) Bar Rule 4-7.14, which sets forth the requirements for Florida  lawyers to call themselves “experts” and “specialists”  in advertisements and other documents.  The case is In re: Amendments to Rule Regulating The Florida Bar 4-7.14., Case No. SC18-2019.  The June 27, 2019 Supreme Court of Florida opinion is here: https://www.floridasupremecourt.org/content/download/527989/5865891/file/sc18-2019.pdf.  The rule revisions become effective on August 26, 2019.

As I blogged previously here: https://jcorsmeier.wordpress.com/2015/10/02/federal-district-judge-enjoins-the-florida-bar-from-enforcing-rule-prohibiting-truthful-claims-of-expertise/, U.S. District Court Judge Robert Hinkle found in 2015 that non-certified lawyers could have the skills and experience of certified lawyers and held that the Florida Bar Rule restricting the use of “expert” and “specialist” to lawyers who were certified by The Florida Bar (or its equivalent) was unconstitutional and he enjoined the Bar from enforcing it.  The Florida Bar did not appeal.

The Florida Bar’s Board of Governors (BOG) imposed a moratorium on enforcing the rule as written and proposed rule amendments to comply with Judge Hinkle’s ruling; however, the Florida Supreme Court rejected them.  The BOG revised the proposed rule amendments and filed them in 2018.  The opinion approved the revised rule with minor revisions.

The revised Florida Bar Rule 4-7.14 states that lawyers may not claim to have specialization or expertise in an area of law unless they are certified by the Florida Bar, the American Bar Association, another Bar’s accredited plan, or “can objectively verify the claim based on the lawyer’s education, training, experience, or substantial involvement in the area of practice in which specialization or expertise is claimed.”  The Bar’s proposed draft rule stated “and substantial”; however, the court changed the “and” to “or”, which is an important revision.

In addition, a law firm may make that claim of expertise in an area of practice if it can show that at least one of its lawyers can meet those standards and if all firm lawyers cannot meet those standards, it must have a disclaimer that not all of its lawyers specialize or have expertise in that area of practice.  Revisions were also made to the rule comments stating that a lawyer who is “of counsel” to a law firm would permit the firm to claim specialization and expertise if the “of counsel” practices solely with that firm.

Bottom line: The revised Florida Bar rule has been in development since 2015 and the Supreme Court rejected a previous version of the proposed rule.  The rule will now permit lawyers to call themselves “experts” or “specialists” if they are certified by the Florida Bar, the American Bar Association, another Bar’s accredited plan,  if the lawyer “can objectively verify the claim based on the lawyer’s education, training, experience, or substantial involvement in the area of practice in which specialization or expertise is claimed.”

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, Florida Bar, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising expert and specialist, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer use of expertise and specialist in advertising and certification, Lawyers use of specialization and expertise ethics, New Florida Bar Rule 4-7.14 use of expert and specialist, Uncategorized

U.S. Sixth Circuit Court of Appeals strikes down Ohio law which prohibited solicitation of potential workers’ compensation claimants

Hello everyone and welcome to this Ethics Alert, which will discuss the recent United States Sixth Circuit Court of Appeals opinion which struck down an Ohio law which prohibited solicitation of potential workers’ compensation claimants as a violation of the First Amendment of the U.S. Constitution.  The case is Bevan & Associates v. Yost, Case No. 18-3262 (U.S. Sixth Circuit Court of Appeals) and the July 8, 2019 opinion is here: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0144p-06.pdf

The Ohio statute prohibited all solicitations to represent claimants or employers in workers’ compensation cases.  The statute states as follows: “No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the bureau or commission.” Ohio Rev. Code § 4123.88(A).

The Ohio statute had an exception permitting access to journalists and, according to the opinion, “Bevan hired Capital Publishing, a journalistic service, and Regina Mace, a former client and apparent journalist, to use the journalist exception to gain access to the Bureau’s claimant information. Bevan then combined the information it acquired from the journalists with information it had obtained from other outlets (including claimant information obtained from the Bureau prior to the 2006 amendments) to compile a list of individuals who would eventually receive direct mail advertisements. Bevan then sent advertisements to these potential customers.  The advertisements were addressed to ‘INJURED . . . WORKER’ and alerted the worker to the fact that they might be ‘entitled to an additional CASH AWARD for your injury that the Ohio Bureau of Workers Compensation (BWC) has not told you about!’ R. 38-2, Page ID 172–73. Bevan’s letters also included a disclaimer which stated that ‘This ADVERTISING MATERIAL is not intended to be a SOLICITATION under Ohio’s Rules governing lawyers, as it is unknown whether the recipient is in need of legal services.’”

The law firm filed the federal lawsuit after the journalist received a subpoena from an Ohio grand jury investigating a possible violation of the Ohio law.  Lawyers for the state of Ohio argued that the solicitation prohibition was part of a larger statutory structure restricting access to claimant address information from the state workers’ compensation bureau, which was adopted in 2006.

According to the opinion:  “(T)he First Amendment provides “protection, in pertinent part, against laws ‘abridging the freedom of speech.’ U.S. Const. amend. I. Although the First Amendment ‘accords a lesser protection to commercial speech than to other constitutionally guaranteed expression,’ Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), it nonetheless protects truthful commercial speech that is not related to unlawful activity, id. at 564.”

“Under the framework of Central Hudson, when analyzing regulation of commercial speech, we follow a four-part test. (1) The commercial speech must not be misleading nor relate to unlawful activity, for the First Amendment does not protect ‘commercial messages that do not accurately inform the public about lawful activity.’ Id. at 563–64. If this criterion is satisfied, the regulation can survive only if (2) the government can show a substantial interest in restricting the commercial speech, (3) the regulation at issue directly advances the governmental interest, and (4) the regulation is ‘designed carefully to achieve the State’s goal.’ Id. at 564.  A regulation is ‘designed carefully’ if it directly advances the asserted government interest and there is no more narrow regulation that might achieve the same goals. Id.”

The opinion held:  “Because Ohio’s interest in protecting claimant privacy cannot outweigh Bevan’s right to engage in commercial speech, and because § 4123.88(A) completely bars solicitation, the statute fails the Central Hudson test.”  The opinion further found that, even if the law firm had violated the Ohio law prohibiting access to claimant information, this would not be relevant to the issue of whether the blanket solicitation prohibition is constitutional since, on its face, the statute prohibits all solicitation of claimants, no matter how the information was obtained and, “(a)s written, this prohibition is repugnant to the free speech clause of the First Amendment.”

Bottom line:  This case is certainly consistent with other federal and U.S. Supreme Court decisions which prohibit states from enacting blanket prohibitions of direct solicitation of clients; however, the opinions do permit the states to place reasonable “time, place, and manner” restrictions on such activities, such as Florida’s 30 day restriction on solicitation of potential personal injury clients and other advertising disclosure/disclaimer requirements.

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, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer solicitation of workers' compensation claimants and employers, Ohio statute prohibiting solicitation of workers' compensation stricken by federal appeals court, Uncategorized