Category Archives: joe corsmeier

California Bar examines proposal that non-lawyers be permitted to provide legal advice and have a financial interest in law firms

Hello everyone and welcome to this Ethics Alert, which will discuss the recent proposals of a State Bar of California task force which would, inter alia, permit legal technicians to offer legal advice and also permit non-lawyers to have a financial interest in law firms.  The proposals were approved by the State Bar Board of Trustees on July 11, 2019.

The proposals were developed by the California Bar’s Task Force on Access Through Innovation of Legal Services.  The task force’s proposals would make sweeping changes by modifying the restrictions on the unauthorized practice of law and ethics rules that prohibit fee sharing with nonlawyers and would also permit legal technicians to provide legal advice and practice law.  The California Bar press release announcing the proposals is here: http://www.calbar.ca.gov/About-Us/News-Events/News-Releases/board-approves-public-comment-on-tech-task-forces-regulatory-reform-options-under-consideration.  The California Bar agenda item with the proposals is here:  http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000024450.pdf

The proposals would permit non-lawyers to provide certain specified legal advice and services, with the appropriate regulation, and permit entities that provide legal or law-related services to be made up of lawyers, nonlawyers or a combination of the two. The regulations would differ depending upon the type of entity, and also permit lawyers to be part of a law firm in which a nonlawyer holds a financial interest.

The task force proposed two alternatives.  The first would include provisions permitting non-lawyers to provide services that assist the lawyers or law firm in providing legal services, and state that the nonlawyers have no power to direct or control the professional judgment of the lawyers. The other would permit lawyers to share fees with non-lawyers as long as the client provides written consent.

The proposals also would also permit state-approved businesses to use legal technology to deliver legal services.  Regulatory standards governing the provider and the technology would be established and client communications with such entities would be covered by attorney-client privilege/confidentiality.

According to the California Bar press release:  “The State Bar Board of Trustees on July 11 authorized a 60-day public comment period for a sweeping set of regulatory reform options for improving access to legal services, developed by the Task Force on Access Through Innovation of Legal Services (ATILS).”

“Beginning next week, the State Bar will seek written comment from consumers, legal service providers, technology experts, and lawyers as vital input for evaluating the options. The Task Force also plans to hold a public hearing to receive oral testimony. The hearing, to take place on August 10, 2019, at the State Bar’s San Francisco office, is timed to coincide with this year’s annual meeting of the American Bar Association.”

Bottom line:  These California Bar proposals have a long way to go before being potentially implemented; however, if they are eventually implemented, California will be another one of the few states which would permit legal technicians to offer legal advice and the only jurisdiction (other than the District of Columbia) to permit nonlawyers to hold a financial interest in law firms.  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.

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 2019 California non-lawyer practice and ownership proposals, Fee sharing with non-lawyer owned firms, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer fee splitting, Non lawyer compensation, Non-lawyer limited practice of law, Non-lawyer ownership, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized

Tennessee lawyer disbarred for, inter alia, false and exaggerated time entries and making false statements in court under oath

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Tennessee Supreme Court opinion disbarring a lawyer for, inter alia, giving a false statement under oath, knowingly testifying falsely in a court proceeding, and seeking an unreasonable fee  The case is Tennessee Board of Professional Responsibility v. Loring Edward Justice, Case No. E2017-01334-SC-R3-BP.  The link with the July 2, 2019 SC opinion is here: https://docs.tbpr.org/justice-2254-sc-decision.pdf.

According to the opinion, the lawyer made false and exaggerated time entries when he submitted a request for more than $103,000 in legal fees for the time that he spent fighting Lowe’s Home Centers over a discovery violation.  The lawyer also claimed his paralegal’s work as his own and falsely stated that he had kept “contemporaneous records” of the time he spent in the underlying discovery dispute.  The lawyer also submitted a “grossly exaggerated” fee itemization that included work for which he was not supposed to be paid.

A federal district judge had ordered that the lawyer be paid for the time that he spent locating and deposing a store human resources manager as a sanction for the store’s failure to disclose the name in discovery.  After questions arose about Justice’s legal billings, including seventeen items described as attorney time which were identical or nearly identical to invoices submitted by the lawyer’s paralegal, the judge declined to award fees to the lawyer..  In addition, other billings in the lawyer’s fee itemization were found to be for tasks that were “completely unrelated” to the issues in the dispute.

A Board of Professional Responsibility hearing panel had recommended a one-year suspension rather than a disbarment and the lawyer, and the Board of Professional Responsibility appealed.  The hearing panel’s Findings of Fact and Conclusions of Law are here:  https://docs.tbpr.org/justice-2254-hp-judgment.pdf.

A judge assigned to hear the case later modified the suspension recommendation to disbarment, stating that the lawyer’s “intentional deceit” and “total lack of remorse” required disbarment.

The lengthy Supreme Court opinion stated that the evidence “furnishes an eminently sound factual basis for the hearing panel’s decision” and the judge’s modification of the sanction to disbarment.  In a footnote, the opinion stated that some of the lawyer’s arguments were “too outlandish to dignify with discussion”, including the argument that the trial judge’s given name illustrates bias. The footnote states: “Not only is this argument without merit, it is absurd.”  The opinion disbarred the lawyer.

Bottom line:  According to the very lengthy opinion, this lawyer apparently decided to fabricate his time, make false statements, and then continue to argue and claim that the fee was appropriate throughout the proceedings.  He and his lawyers also made arguments that were “too outlandish to dignify with discussion.”

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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Ohio lawyer who passed $11.00 in cash to her jailed boyfriend faces six month stayed suspension

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Ohio Board of Professional Conduct report which recommends that an Ohio lawyer be suspended for six (6) months for passing $11.00 in cash under the table to her incarcerated boyfriend.  The case is Cincinnati Bar Association v. Virginia Maria Riggs-Horton, Case No. 2018-1757.  The link with the report and other documents in the case is here:  http://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2018/1757

The lawyer was convicted of the misdemeanor of promoting (passing) contraband and was given a suspended jail sentence. She then self-reported to the Cincinnati, Ohio, and Kentucky Bar Associations.

The Ohio Supreme Court Board of Professional Conduct recommended the stayed suspension after the lawyer admitted that she passed the money to her boyfriend at a Kentucky detention center in August 2017 after he asked for cash for vending machines. The detention center rules prohibited money from being provided to prisoners without first being given to guards.  The lawyer stated that she was unaware of the prohibition.

The Ohio Supreme Court initially rejected the six month stayed suspension and remanded the case for a formal hearing.  A formal hearing was held before a Board panel on April 25, 2019, which again recommended the six month stayed suspension with conditions.  According to the report, the lawyer had no prior discipline and displayed a cooperative attitude in ethics proceedings. She also had a good reputation in the community.  The Ohio Board of Professional Conduct than adopted that recommendation in its report, which was filed with the Ohio Supreme Court on June 14, 2019.

Bottom line:  This lawyer passed $11.00 to her boyfriend under the table while visiting him in the jail, which was a violation of the jail rules and constituted the illegal passing of contraband.  The lawyer was then prosecuted and plead guilty to a misdemeanor and self-reported.  This was a very unfortunate learning experience for the lawyer.

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, joe corsmeier, Joseph Corsmeier, Lawyer conviction of passing contraband suspension, Lawyer criminal charge suspension, Lawyer criminal conduct, Lawyer discipline for criminalconviction, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer suspension for passing contraband to client in jail, Uncategorized

ABA issues Formal Opinion 487 providing guidance regarding fee divisions in contingency cases when a lawyer is replaced

Hello everyone and welcome to this Ethics Alert, which will discuss the recent American Bar Association Formal Opinion 487, which provides guidance regarding the requirements of fee divisions in contingency fee matters when the initial lawyer is replaced by a successor lawyer.  ABA Formal Opinion 487 is here:  https://www.americanbar.org/content/dam/aba/images/news/2019/06/FormalOpinion487.pdf

ABA Formal Opinion 487 clarifies that a lawyer, who is a successor counsel in a contingency-fee matter, must notify the client, in writing, that a portion of any fees recovered may be paid to the original counsel. The opinion addresses a common misunderstanding about which model rules apply to successor relationships in contingency fee agreements, and the duties of successor counsel.

The initial lawyer in a contingency fee matter will often assert a lien on the proceeds when the lawyer is terminated or is required to withdraw; however, if the client employs successor counsel, the client may not understand there is a continuing obligation to pay the original lawyer for the value that lawyer contributed or was entitled to under the original contract.

The opinion states that lawyers may erroneously believe that ABA Model Rule 1.5(e) (or its state equivalent) (division of a fee between lawyers who are not in the same firm) governs this situation; however, Rule 1.5(e) only applies when there is division of fees between lawyers from different firms who are simultaneously representing a client or maintaining responsibility for the matter, not when there is successive representation. Rule 1.5(e) specifically requires that lawyers who are simultaneously representing a client and dividing a fee in a matter either divide the fee in proportion to the services delivered or assume joint responsibility for the representation.

When a lawyer no longer represents the client and there is a successor lawyer, there is no joint responsibility since the initial lawyer has no further responsibility after the withdrawal or termination and, according to the opinion, Model Rule 1.5(b) and (c) would apply to the successor lawyer in the fee relationship with the client.

Comment 2 to 1.5 states that, “an understanding as to fees …must be established”; however, the rule provides no specific time frame in which that understanding must occur. The opinion notes that under 1.5(a), client consent must be obtained before the fee is divided, which can occur up to the time of the conclusion of the matter and prior to disbursement of any money.

The opinion states that the duty to disclose the original lawyer’s potential claim and entitlement to some portion of the recovery does not constitute an “unreasonable burden” on successor counsel since, although a client may discharge a lawyer at any time for any reason, the client may be unaware of obligations to pay both the successor lawyer and the initial lawyer.  The opinion states that the successor counsel must address and clarify any confusion and inform the client, in writing, that the original attorney may have a claim against the contingency fee.

In many jurisdictions (including Florida), the initial lawyer may or would be entitled to, at a minimum,  the quantum meruit value of the lawyer’s services and the exact recovery and division of fees may not be known until the end of the case; however, the successor lawyer still has a duty to inform the client about a potential fee split.

The opinion also observes that, in many instances, the fees paid to both attorneys will not affect the client’s recovery, since a client cannot be required to pay more than one contingency fee when switching attorneys; however, if the client’s original counsel was terminated for cause, the initial lawyer may not have any claim to fees on the recovery.

Finally, according to the opinion, if the successor lawyer is required to negotiate fees with the initial lawyer on the client’s behalf, the successor lawyer must advise the client and obtain a waiver to avoid issues with Rule 1.7 conflict of interest regarding the disbursement of the funds.  Also, if a dispute arises regarding the disbursement of the funds, the successor lawyer has the obligation under Rule 1.15(e) to retain the funds in the trust account pending resolution of the dispute (and, in many jurisdictions, including Florida, the lawyer may be required to place the disputed funds in the court registry if the dispute cannot be resolved).

Bottom line:  This ABA opinion provides clear guidance on the Model Bar rule requirements when there is division of fees after the initial lawyer withdraws or is terminated and the client hires a successor counsel in contingency matters; however, lawyers must be aware that ABA opinions provide guidance regarding the ABA Model Rules only and each lawyer must research his or her own jurisdiction’s Bar Rules before taking any action.

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 ABA Formal Opinion 487- lawyer division of fees in contingency cases when lawyer is replaced, ABA Model Rules, Attorney Ethics, fee sharing, joe corsmeier, Joseph Corsmeier, Lawyer division of fees contingency matters, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer fee splitting, Uncategorized

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

Hello everyone and welcome to this Ethics Alert, which will discuss the recent approval of revisions to Florida Bar Rule 4-7.13 by the Florida Bar Board of Governors (BOG).  If implemented, the proposed revisions would prohibit misleading law firm information in all Florida lawyer advertisements.

As I previously reported, the agenda for the BOG’s May 26, 2019 meeting included final action on a proposed amendment to Florida Bar Rule 4-7.13 related to misleading law firm advertisements. The BOG ethics committee previously voted not to approve a proposal to add Bar Rule 4-7.13(c), which would have stated:

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 proposed rule would broaden the prohibition to include all advertisements 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 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 proposed rule will now undergo a review process and will be sent to the Florida Supreme Court in a petition for potential approval and implementation.

Bottom line:  As I have previously reported, if the revised Rule 4-7.13 prohibiting all of these types of misleading advertisements is implemented by the Florida Supreme Court, the rule would be consistent with other jurisdictions that have considered the issue.

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, deceit, false statements, Florida Bar, Florida Bar rule using GoogleAds words to misdirect to another firm, Florida Bar Rule- lawyer misleading law firm information in all advertising, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misleading law firm information in advertising, Lawyer misrepresentation, misrepresentations, Uncategorized