Category Archives: Joseph Corsmeier

Utah Supreme Court approves Rocket Lawyer and other entities to participate in regulatory “sandbox”

Hello everyone and welcome to this Ethics Alert, which will discuss recent approval of Rocket lawyer and other entities to participate in Utah’s pilot regulatory “sandbox program. 

On September 8, 2020, Rocket Lawyer announced that it was one of the first entities approved by the Utah Supreme Court to participate in the regulatory “sandbox” program permitting, inter alia, nontraditional legal service providers.  Rocket Lawyer’s website is here:  https://www.rocketlawyer.com/ 

As I previously blogged here: https://jcorsmeier.wordpress.com/2020/08/18/utah-supreme-court-authorizes-pilot-program-which-inter-alia-permits-non-lawyers-to-own-law-firms-and-share-fees-with-lawyers/, the Utah Supreme Court approved the regulatory “sandbox” pilot program as the primary part of a regulatory reform package which was designed to allow the testing of innovative approaches to serving legal consumers will ultimately improve the public’s access to justice.  The Court’s August 14, 2020 Standing Order is here: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2020/08/FINAL-Utah-Supreme-Court-Standing-Order-No.-15.pdf   

A total of five entities were approved for participation in the sandbox program.  The other approved applicants were:

  1. LawHQ: A Salt Lake City law firm which plans to offer equity ownership to certain software developers in the firm and a software application called CallerHQ, which is designed to allow consumers to report spam telephone calls, text messages and voicemails. Consumers who sign up may then be included in a mass tort litigation brought by LawHQ against the spammers.
  1. 1Law: An entity which plans to provide no-cost and low-cost legal services to assist clients in completing court documents and also offer related legal advice using chatbots, instant messaging, automated interviews, nonlawyer staff and technology-assisted lawyers. 1Law plans to have more than 50% nonlawyer ownership.
  1. LawPal: An entity which plans to provide a TurboTax-like technology platform to generate legal documents in contested and uncontested divorce and custody cases, eviction cases and debt-related property seizure cases. It expects to feature 50% nonlawyer ownership.
  1. Blue Bee Bankruptcy Law: The sole owner of this law firm states that he will give his paralegal employee a 10% ownership interest in the firm as an incentive to remain with the firm.

The Utah Supreme Court’s Order creating the pilot sandbox program states that participants must demonstrate that the activities and services “do not cause levels of consumer harm above threshold levels established by” the Court’s innovation office.  Successful sandbox participants may also ultimately receive approval to exit the sandbox program and continue practicing the services after the pilot program ends.

After the two-year pilot program period, which began on August 14, 2020, is over, the Utah Supreme Court will evaluate whether the program should continue “based on a review of data collected from those entities and individuals participating in the program.”  If not approved to continue, the program will sunset after the 2 year period.  

As I previously blogged, the Arizona Supreme Court recently approved rule revisions which will permit alternative legal business structures.  The Arizona rule revisions become effective January 1, 2020 and there are no provisions for a regulatory “sandbox program”.  My blog is here:  https://jcorsmeier.wordpress.com/2020/09/02/arizona-becomes-first-u-s-state-to-authorize-non-lawyer-ownership-of-law-firms-and-fee-sharing/

Bottom line:  As I have said before, if this trend continues, this could become the wave of the future in other states and jurisdictions. 

Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

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 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, 2020 Arizona authorization of non-lawyer practice, fee sharing and limited practice, 2020 Utah Supreme Court Order approving sandbox and non- lawyer practice and ownership, Arizona Supreme Court authorization of non-lawyer ownership of law firms, sharing fees, and practice of law, joe corsmeier, Joseph Corsmeier, lawyer fee splitting, Limited Practice of Law, Non-lawyer limited practice, Non-lawyer limited practice of law, Non-lawyer ownership, Non-lawyer ownership of law firms, non-lawyer ownership of law firms and fee splitting, Non-lawyer practice, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized, Utah approval of Rocket Matter as provider, Utah Supreme Court regulatory sandbox

Arizona becomes first U.S. state to authorize non-lawyer ownership of law firms and fee sharing

Hello everyone and welcome to this Ethics Alert, which will discuss the Arizona Supreme Court’s recent implementation of rule revisions which will permit non-lawyers to own law firms and share fees with lawyers, and also makes other significant rule revisions.  The link to the Court’s August 27, 2020 press release explaining the rule revisions is here:  http://www.azcourts.gov/Portals/201/Press%20Releases/2020Releases/082720RulesAgenda.pdf

When the rule revisions become effective on January 1, 2021, Arizona will become the first U.S. state to implement revisions to its Bar rules permitting non-lawyer ownership of law firms and permitting non-lawyers to share fees with lawyers.

According to the press release, the rule revisions are intended to promote innovation and make legal services more affordable and still protecting the public.

“The court’s goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help.”  “These new rules will promote business innovation in providing legal services at affordable prices.”

The press release states that, after the revised rules become effective, the court will adopt a new licensure process to allow non-lawyers, called “legal paraprofessionals,” to provide limited legal services to the public, including representing clients in court proceedings.  The revisions also eliminate rule 5.4, which prohibits non-lawyers from having an ownership interest in a law firm; however, these “alternative business structures” will be required to obtain licenses.

The Arizona Supreme Court also made revisions to the Bar rules regulating lawyer advertising “most of which align with recent changes made to the American Bar Association’s Model Rules.”

The press release states that more information about the revisions is on the Court’s Access to Legal Services webpage at https://www.azcourts.gov/accesstolegalservices/

Bottom line:  The Arizona Supreme Court’s decision to revise the Bar rules continues the growing trend toward permitting non-lawyers and non-traditional entities to become involved in legal practice and the legal process.

As I previously blogged here: https://jcorsmeier.wordpress.com/2020/08/18/utah-supreme-court-authorizes-pilot-program-which-inter-alia-permits-non-lawyers-to-own-law-firms-and-share-fees-with-lawyers/, the Utah Supreme Court also recently approved a two-year “regulatory sandbox” pilot program permitting non-lawyers to experiment with different methods of delivering legal services outside of the existing regulatory framework.  Washington, D.C. and other states are also considering potential revisions related to the restrictions on non-lawyer involvement in the practice of law.

Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

5 Comments

Filed under 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, 2020 Arizona adoption of ABA advertising rules, 2020 Arizona authorization of non-lawyer practice, fee sharing and limited practice, 2020 Utah Supreme Court Order approving sandbox and non- lawyer practice and ownership, ABA Model Rules, ABA revised advertising rules, Arizona Supreme Court authorization of non-lawyer ownership of law firms, sharing fees, and practice of law, Attorney Ethics, fee sharing, Fee sharing with non-lawyer owned firms, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation APRL report, Lawyer advertising rules, Lawyer ethics, lawyer fee splitting, Lawyer referral fees, Lawyer sharing fees with non-lawyers, Non lawyer compensation, Non-lawyer limited practice, Non-lawyer limited practice of law, Non-lawyer ownership, Non-lawyer ownership of law firms, non-lawyer ownership of law firms and fee splitting, Non-lawyer practice, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized

Utah Supreme Court authorizes pilot program which, inter alia, permits non-lawyers to own law firms and share fees with lawyers

Hello everyone and welcome to this Ethics Alert, which will discuss recent Utah Supreme Court approval of a pilot program which would permit non-lawyers to own law firms, share fees with lawyers, and makes other significant revisions.  The link to the Utah Supreme Court’s Standing Order No. 15 approving the pilot program is here:  http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2020/08/FINAL-Utah-Supreme-Court-Standing-Order-No.-15.pdf and the Utah Bar Rule revisions related to the pilot program are here: http://www.utcourts.gov/utc/rules-approved/2020/08/13/supreme-court-regulatory-reform-effective-august-14-2020/.  The Standing Order and Rule revisions were effective August 14, 2020 and will sunset in two years unless there is a further order of the Court.

The details of the “pilot legal regulatory sandbox” are set forth in the Supreme Court’s Standing Order 15 and in the revisions to the Utah Rules of Professional Conduct.  The program creates a “regulatory sandbox” for non-traditional legal providers and services, including entities with non-lawyer investment or ownership and also creates an Office of Legal Services Innovation, which will assess the sandbox applicants and make recommendations to the Court and also supervise the applicants who are authorized by the Court to offer legal services.

According to the Utah Supreme Court’s August 13, 2020 press release:

“These changes allow individuals and entities to explore creative ways to safely allow lawyers and non-lawyers to practice law and to reduce constraints on how lawyers market and promote their services. In order to assess whether the changes are working as intended, the Supreme Court has authorized the core portions of these changes for a two-year period. At the conclusion of that time, the Supreme Court will carefully evaluate whether the program should continue. The evaluation will be based on a review of data collected from those entities and individuals participating in the program. The Supreme Court’s willingness to experiment with innovation is an important step, especially now, because the need for more affordable legal help has reached crisis levels as a result of the COVID-19 pandemic and its economic fallout.”

According to the press release, after the 90 day period which was allotted for input, the Supreme Court made a number of changes to the initial proposals. These changes “included: (1) increasing transparency into the application and approval process, (2) adding clearer channels for complaints regarding the new legal services, (3) severely restricting any roles for disbarred or suspended lawyers and those with certain felony convictions, (4) more explicitly articulating the program’s access-to-justice goals, (5) and more clearly delineating that the program will sunset in two years absent further order of the Supreme Court.”

The Utah Supreme Court’s press release is here: https://www.utcourts.gov/utc/news/2020/08/13/to-tackle-the-unmet-legal-needs-crisis-utah-supreme-court-unanimously-endorses-a-pilot-program-to-assess-changes-to-the-governance-of-the-practice-of-law/

Bottom line:  If the Utah Supreme Court’s pilot program is made permanent, it will radically change the practice of law in Utah and may also become the wave of the future in other states and jurisdictions.

Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

4 Comments

Filed under 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, 2020 Utah Supreme Court Order approving sandbox and non- lawyer practice and ownership, Attorney Ethics, fee sharing, Fee sharing with non-lawyer owned firms, joe corsmeier, Joseph Corsmeier, Lawyer ethics, lawyer fee splitting, Non-lawyer ownership, Non-lawyer ownership of law firms, non-lawyer ownership of law firms and fee splitting, Non-lawyer practice, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized, Utah Supreme Court regulatory sandbox

Pennsylvania lawyer suspended after paying clients over $500,000 from own funds for false case results

Hello everyone and welcome to this Ethics Alert which will discuss the recent Pennsylvania Supreme Court suspension of a Pennsylvania lawyer for 4 years retroactively for falsely telling four clients that he had resolved their cases and then paying them over $500,000.00 from his own personal funds.  The lawyer, Keith Michael McWhirk, was suspended in a July 31, 2020 Order, which is here: http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/28DB2016-McWhirk.pdf

The lawyer agreed to a four-year suspension retroactive to Feb. 25, 2016, the date that he was previously temporarily suspended from practice. The SC Order is here:  http://www.pacourts.us/assets/opinions/Supreme/out/2247dd3%20-%201025598236209037.pdf#search=%22McWhirk%22

According to the Joint Petition in Support of Discipline on Consent, the lawyer was a named partner at a firm called Mandracchia & McWhirk in December 2015 when he lost consciousness and collapsed at a work-related event. He was hospitalized for five days and required surgery for injuries that included facial fractures.  Other lawyers who were trying to cover the lawyers files “began to discover mounting evidence of serious ethical misconduct, according to the joint petition.  The joint petition is here:  http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/28DB2016-McWhirk.pdf

The lawyer was terminated by the law firm and self-reported his misconduct in February 2016.  He provided a list of 11 client matters in which he misrepresented the status of cases to clients. In seven additional cases, the lawyer falsely advised clients that he had filed complaints, motions and responsive pleadings when he had actually not filed them.

In four cases, the lawyer used his personal funds to pay clients after telling them that he had received money from settlements, awards and legal claims. The amounts paid were $10,000.00, $31,000.00, $69,500.00 and $424,000.00.  The client who received the $424,000.00 payment was a commercial bank seeking to foreclose on a mortgage and the lawyer misrepresented that he had filed a foreclosure action and also misrepresented that a sheriff’s sale had taken place.  The other clients who received personal funds from the lawyer were two other mortgage foreclosure clients and a plaintiff who sued an auto restoration company.

The joint petition in support of discipline set forth mitigating circumstances, including that the lawyer “self-reported his misconduct and was forthright and specific”, cooperated with the Pennsylvania Office of Disciplinary Counsel, making admissions that would not have been discovered without his assistance, and “exhibited deep remorse for his misconduct.”

Before his temporary suspension in 2016, the lawyer had practiced law for more than 16 years with no prior discipline and he has been diagnosed with anxiety and depressed mood and he is receiving treatment.  The lawyer claimed that the disorder was a causal factor in several elements of his misconduct, as well as a pattern of avoidance that the lawyer learned during childhood.

According to the joint petition, the lawyer “did not mishandle or misuse funds entrusted to him by any client or from the firm but instead utilized his own funds for the ultimate benefit of clients.”  “Importantly, no misrepresentations were made to any tribunal.”  The lawyer fabricated a court order and a sheriff’s distribution sheet to support his misrepresentations,; however, they were provided only to clients and not used to the lawyer’s advantage.

Bottom line:  This is a bizarre case involving a lawyer who engaged in a “pattern of avoidance”, fabricated court documents, and paid clients over $500,000.00 of his own money to cover up his misconduct.

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 34683

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 competence, deceit, dishonesty, false statements, fraud, joe corsmeier, Joseph Corsmeier, Lawyer diligence, Lawyer discipline, Lawyer ethics, Lawyer falsifying court documents and paying fictitious judgments, Lawyer lack of competence, Lawyer lack of diligence, misrepresentations, Uncategorized

The ethical and professional risks and hazards of sending e-mails and tips on how to avoid them

Hello everyone and welcome to this Ethics Alert which will discuss the ethical risks and dangers of e-mails and provide tips on how to avoid them.

Electronic mail has certainly become the primary form of communication for most lawyers (even more than texting and Zoom); however, lawyers must always remember that their e-mails could be read not only by the intended recipients but also by third parties.  A lawyer’s e-mails can (and do) also become potential evidence in Bar discipline hearings and malpractice lawsuits and lawyers should not assume that communications with clients, opposing counsel, and others or even within their own law firm are protected from disclosure.

Errors made by lawyers in e-mails include inadvertently sending an e-mail with confidential information to the wrong recipient, copying the client on an e-mail to opposing counsel and receiving a reply all response, or otherwise using words in an e-mail which will negatively impact a client matter (or the lawyer’s reputation).  E-mails are also available in electronic form for all time.

With that in mind, the following are some tips regarding lawyer e-mail communications:

Before sending an e-mail, consider communicating by telephone or in person, which may be more effective than using e-mail.

Do not respond immediately to an e-mail that upsets you and/or that you believe attacks you or your client.  Always wait to calm down and compose your thoughts and also consider having a colleague in your law firm review the e-mail before sending it.

If you ultimately decide to send an e-mail, be sure to carefully review it before pressing “send.” Use the spell checker and complete the “to” and “cc” lines after you finalize the e-mail.

Always use professional language and do not try to make jokes, which may be misinterpreted by the recipient and/or interpreted differently in an investigation or legal proceeding.

Avoid the use of all capital letters (which may be interpreted as yelling), excessive exclamation points, abbreviations, and emoticons, which also may be wrongly interpreted by the recipient and/or in another context.

Before sending an e-mail, always confirm that the e-mail is addressed to the right recipient (and correctly copied to others) before sending it, particularly if contains confidential or sensitive information and the autocomplete feature can complete the wrong e-mail address.  Better yet, just turn off the autocomplete function.

Be careful using “reply all.”  E-mails that are meant for only one recipient may be sent to all recipients and potentially disclose information that should not have been shared.

Be careful using the “bcc” (blind copy) function and use it sparingly and judiciously.  A “bcc” recipient (including the client) can and sometimes will hit “reply all,” letting everyone know that he or she was blind copied and also potentially making comments that are embarrassing or inappropriate.  New York Bar Association Ethics Opinion 1076 (December 8, 2015) discusses the perils of copying the client and others and advises lawyers not to “bcc” clients on e-mails with opposing counsel.

If you are attaching a document, always confirm that it is the correct document. Sending the wrong document with confidential information in an attachment can have serious consequences.

Finally, when communicating with clients by e-mail, the lawyer should take steps to insure that confidential and privileged information remains within the attorney-client relationship, which can include specifically advising clients not to forward e-mails or other documents to third parties.

Bottom line:  E-mails are certainly a part of our daily lives, both personally and as lawyers.  These are some tips to avoid the professional risks involved in sending e-mails.

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 34683

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 Attorney Ethics, attorney-client privilege, Attorney/client confidentiality, attorney/client privilege, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Inadvertent disclosure of Confidential Documents, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, lawyer ethical and professional risks and hazards of sending e-mails, Lawyer ethics and e-mails, Uncategorized

Law firm sued over $3.1 million wire transfer sent to a scammer’s fraudulent bank account

Hello everyone and welcome to this Ethics Alert which will discuss the lawsuit that was filed against, inter alia, Holland & Knight, alleging that it failed to prevent the transfer of $3.1 million to a fraudulent account in Hong Kong created by a scammer.  The lawsuit was initially filed in Utah state court in June 2020 and was removed to federal court on July 21, 2020.  The case is styled Sorenson Impact Foundation, and James Lee Sorenson Family Foundation, v. Continental Stock Transfer & Trust, Tassel Patent, Inc., and Holland & Knight, LLP.  The lawsuit filed in the Utah State Court is here: https://pdfserver.amlaw.com/legalradar/35418861_complaint.pdf

The lawsuit alleges breach of fiduciary duty and breach of contract and, factually, that Holland & Knight failed to investigate after the individual who perpetrated the scam intercepted e-mails regarding a stock sale by 2 trusts, posed as the seller, and instructed the law firm to wire $3.1 million from the stock buyer to another, but similarly named, account.  According to the foundation’s website, the plaintiffs were two foundations selling stock.  Sorenson Impact Foundation invests in startups that serve underserved communities and the James Lee Sorenson Family Foundation is a nonprofit trust located in Utah.

According to the lawsuit, Holland & Knight sent an e-mail addressed to the stock sellers requesting verification of the new account; however, it was intercepted by the scammer and was never received by the sellers. The scammer then sent Holland & Knight new documents that included information on a new bank account, held under a slightly different name, HongKong Wemakos Furniture Trading Co. Limited.

The lawsuit claims that both trusts had relied upon Holland & Knight to document the stock acquisition and carry out a merger plan related to the stock sale.  The lawsuit further claims Holland & Knight and the transfer agent, Continental Stock Transfer & Trust, Tassel Patent, Inc., the second defendant, knew or should have known that the accounts were not legitimate because of inconsistencies in the documents. The lawsuit also alleges that the defendants should have contact the stock sellers to verify the e-mails and should have been aware that international wire transfers to China have a heightened risk of being fraudulent.

According to the ABA Journal (which posted the PDF of the lawsuit): Holland & Knight provided the following statement: “Holland & Knight’s information technology system was not compromised in any way. The plaintiff was not a client, and the firm acted on wiring instructions received from the plaintiff’s email system by providing the instructions to the paying agent.”

Bottom line:  We will see how this particular lawsuit plays out; however, as I have said many times before, lawyers must be very aware of the potential for scammers to perpetuate this type of fraud and be vigilant in attempting to prevent this fraud from occurring.  In this situation, a personal call to the client with the client (or its representative) confirming the wire transfer details may or most likely would have prevented this fraud from occurring.

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 34683

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 joe corsmeier, Joseph Corsmeier, Lawsuit alleging law firm liability for wire transfer scam, Lawyer victim of wire transfer scams, Uncategorized

Florida Bar UPL Committee issues proposed opinion stating that out-of-state lawyer may practice federal law remotely from Florida home   

Hello everyone and welcome to this Ethics Alert which will discuss the Proposed Advisory Opinion issued by the Florida Bar’s Standing Committee on the Unlicensed Practice of Law stating that an out-of-state lawyer may practice federal law remotely from his Florida home.  Proposed UPL Advisory Opinion FAO #201904 is here: https://www-media.floridabar.org/uploads/2020/07/Complete-FAO-2019-4-Opinion-1.pdf

The proposed advisory opinion states that an out-of-state licensed attorney who is working remotely on federal intellectual property rights matters (and not Florida law) from his or her Florida home for an out-of-state law firm and no public presence or profile in Florida as an attorney would not be engaging in the unlicensed practice of law.  The advisory opinion will be filed with the Florida Supreme Court on August 17, 2020.

The opinion states:

In light of the current COVID-19 pandemic, the Standing Committee finds the written testimony of Florida-licensed attorney, Salomé J. Zikakis, to be particularly persuasive:

I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.

There are areas of the law that do not require being physically present, whether in a courtroom or a law office. Using the attorney’s physical presence in Florida as the definitive criteria [sic] is inappropriate. So long as the attorney is not practicing Florida law, is not advertising that he practices Florida law, and creates no public presence or profile as a Florida attorney, then there is no UPL simply because the attorney is physically located in Florida. There is no harm to the public. These facts do not and should not constitute UPL in Florida.

The opinion concludes:

It is the opinion of the Standing Committee that the Petitioner who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from his private Florida residence under the circumstances described in this request does not establish a regular presence in Florida for the practice of law. Consequently, it is the opinion of the Standing Committee that it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.

The Florida Bar’s notice of filing the proposed advisory opinion states:

The bar will file the proposed opinion with the Supreme Court of Florida on or about August 17, 2020. Pursuant to R. Regulating Fla. Bar 10-9.1(g)(3), “within 30 days of the filing of the proposed advisory opinion, the petitioner and any other interested party may file a brief or memorandum in response to the proposed advisory opinion, copies of which must be served on the committee at the Florida Bar’s headquarters address in Tallahassee. The committee may file a responsive brief or memorandum within 20 days of service of the initial brief or memorandum. The petitioner, and other interested persons, may file a reply brief within 10 days of service of the responsive brief or memorandum. The court may permit reasonable extension of these time periods. Oral argument will be allowed at the court’s discretion. Filing, service, and oral argument will be governed by the Florida Rules of Appellate Procedure.”

Bottom line:  If the Florida Supreme Court approves the proposed advisory opinion and issues a formal opinion, it will clarify that out of state lawyers with no place of business in Florida and without a public presence or profile in Florida as an attorney can practice federal law (and not Florida law) remotely from a Florida residence.

I will continue to follow this issue and keep you advised.  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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 Comment

Filed under Florida Bar, Florida Bar advisory opinion- out of state remote practice in federal matters, Florida Bar Rules, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer unlicensed practice of law, Uncategorized, Unlicensed practice of law, UPL remote practice

ABA Formal Ethics Opinion 493 addresses Model Rule 8.4(g) prohibiting harassment and discrimination based upon, inter alia, race, sex, religion, national origin, and sexual orientation

Hello everyone and welcome to this Ethics Alert, which will discuss the (very) recent (July 15, 2020) American Bar Association Formal Opinion 493 titled “Model Rule 8.4(g): Purpose, Scope, and Application”, which provides guidance on application of the rule prohibiting harassment or discrimination “on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Formal Opinion 493 here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-493.pdf

The lengthy and expansive formal opinion provides guidance on the purpose, scope, and application of ABA Model Rule 8.4(g). The Rule specifically prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of the listed categories.

The formal opinion states that a potential violation of the rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.

ABA Model Rule 8.4(g) is below:

It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The formal opinion also states that ABA Model Rule 8.4(g) applies to conduct and comments related to the practice of law that occur outside the representation of a client and even outside of the courtroom.  The rule is also not restricted to severe or pervasive conduct, which is the standard used in the employment context.  Further, the conduct that violates paragraph (g) will often be intentional and may be targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.

According to the formal opinion, the Model Rule does not prohibit a lawyer from freely expressing opinions and ideas on matters of public concern or limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not from the basis of a rule violation.  Further, the Model Rules are rules of reason, and whether the lawyer’s conduct violates the rules must be judged in the factual context and by using an objectively reasonable standard.

The formal opinion concludes:  “Besides being advocates and counselors, lawyers also serve a broader public role. Lawyers “should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.  Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.“

Bottom line:  The ABA Model Rule 8.4(g), (which is not binding on lawyers) states that lawyers are not prohibited from freely expressing opinions and ideas; however, since lawyers serve a broader public role and are also officers of the court , they must be aware of their public (and potentially private comments) and not make comments which may be considered to be harassment or discrimination on the basis of the listed categories.  As always, lawyers should consult with their jurisdiction’s disciplinary rules for the language in those rules (if any).

Florida lawyers should be aware that Florida Bar Rule 4-8.4(d) has language prohibiting a lawyer’s conduct that is more restrictive and which also expands the categories of conduct which would be considered to be a potential violation of that rule.

Florida Bar Rule 4-8.4(d) is below:

A lawyer shall not: (d) engage 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 litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.

Stay safe and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

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 Ethics Opinion 493 Model Rule 8.4(g) prohibiting harassment and discrimination based upon, inter alia, race, sex, religion, national origin, and sexual orientation, and other derogatory remark, and other derogatory remarks, Attorney discipline, Attorney Ethics, Florida Bar, Florida Bar Rule 4-8.4(d) conduct prejudicial to administration of justice, Florida Bar Rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer derogatory remarks, Lawyer disparagement and discrimination, lawyer disparaging remarks to witness and non-client, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer racially and religiously abusive language, Uncategorized

Pennsylvania lawyer disbarred after secretly referring his law firm’s clients to outside lawyers

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Pennsylvania Supreme Court Order disbarring a lawyer after his conviction for defrauding his law firm out of $3.4 million by secretly referring its personal injury clients to outside lawyers for a percentage of the fees that were generated in the matters.  The case is Office of Disciplinary Counsel v. Neil I. Mittin, No. 2669.  The June 11, 2020 Pennsylvania Supreme Court Order disbarring the lawyer on consent and the lawyer’s Disciplinary Resignation are here:  http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/187DB2019-Mittin.pdf

The lawyer was admitted to practice in Pennsylvania 1979 and had practiced law at the law firm where he was a named partner for 38 years. The lawyer pled guilty to mail fraud in September 2019 and was sentenced to five years in prison in March 2020.  He was alleged to have defrauded law firm out of more than $4 million in legal fees; however, the Court awarded $3.4 million in restitution when he pled guilty to the criminal charges.

The lawyer was alleged to have intercepted numerous personal injury and other legal matters from the law firm and then referred to outside attorneys.  The lawyer allegedly hid the scheme from his law firm by making it appear there were no settlements or resolutions and that cases were not viable and then referring the cases to other lawyers, who would represent the clients through settlements or trials, prosecutors said.

If the cases were resolved successfully, the lawyers paid a referral fee between 33% and 40% of the contingency fees and reimbursement for costs incurred by the lawyer’s firm before the cases were referred.

Bottom line: This was a million dollar scheme to defraud a law firm by a member of that same law firm, who had worked there for 38 years and was a named partner.  It doesn’t get much more greedy than that.

Stay safe 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

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 Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer bad conduct, Lawyer conduct adversely affecting fitness to practice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer stealing from law firm, misrepresentations, Uncategorized

ABA Formal Ethics Opinion 492 addresses lawyer’s obligations to prospective clients after obtaining “significantly harmful” information

Hello everyone and welcome to this Ethics Alert, which will discuss the recent American Bar Association (ABA) Formal Ethics Opinion 492, which addresses the obligations of lawyers to prospective clients, including confidentiality, and conflicts of interest, including potential disqualifying conflicts after the lawyer obtains “significantly harmful” information.  The link to ABA Formal Opinion 492 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-492.pdf

The ABA issued Formal Ethics Opinion 492 on June 9, 2020.  The opinion addresses a lawyer’s obligations to prospective client and discusses who is a “prospective client”, the obligation to protect confidential information, disqualifying conflicts because of the acquisition of “significantly harmful” information, and limiting information during an initial consultation and avoiding the imputation of conflicts to the firm.

“A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter.

“Model Rule 1.18(b) imposes a duty of confidentiality with respect to information learned during a consultation, even when no client-lawyer relationship ensues. It provides: Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.”

“Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).”

The opinion concludes that a lawyer who receives information from a prospective client that could be “significantly harmful” and then represents a client in the same or a substantially related matter where that client’s interests are materially adverse to those of the prospective client would violate Model Rule 1.18(c) unless the conflict is waived by the prospective client.

Bottom line:  This opinion provides detailed information to assist lawyers in analyzing ethics issues that may arise related to prospective clients when the lawyer obtains “significantly harmful” information and provides guidance on how to identify and address those issues and comply with the lawyer’s ethical obligations.

Stay safe 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

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 Model Rules, ABA Opinion 492- prospective clients and "significantly harmful" information, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Privilege, Prospective clients conflict of interest, Uncategorized