Category Archives: Lawyer conduct adversely affecting fitness to practice

Federal magistrate sanctions New York lawyer for lying about family emergency after Instagram posts showed she was on vacation

Hello everyone and welcome to this Ethics Alert, which will discuss recent opinion of a U.S. District Court magistrate sanctioning a New York lawyer who claimed that she missed a deadline because of a family emergency but was apparently on vacation.  The case is: Siu Ching Ha v. Baumgart Café of Livingston, Civil Action No. 15-5530 (ES) (MAH), and the magistrate’s opinion is here:  Ha v. Baumgart Café of Livingston Instagram sanctions

The lawyer, Lina Franco, and her co-counsel, John Troy, filed for an extension of time to file 16 days past the deadline to file a motion for conditional class certification.  The lawyer said she had to leave the country for the family emergency and submitted a flight itinerary showing she had flown from New York City to Mexico City on Thursday, November 21, 2016 and stayed there until December 8, 2016.

Opposing counsel filed a motion objecting to the extension and for sanctions claiming that Instagram photos from Franco’s public social media account indicated that she was in New York and then Miami during that period.  Franco told the magistrate that she had gone to Mexico City earlier in November and that her mother’s medical diagnosis sent her “into a tailspin” that caused her to miss the deadline and submit an erroneous itinerary.

The magistrate found that “November 21, 2016 was indisputably a Monday, not a Thursday” and, although Franco was in Mexico City in early November 2016, she was apparently in New York City when she missed the Nov. 23, 2016 deadline to file a motion for class certification in a wage-and-hour suit.  The magistrate found that Franco deliberately had misled the court and her co-counsel and that her “misrepresentations to the court clearly constitute bad faith and were unreasonable and vexatious, not simply a misunderstanding or well-intentioned zeal.”   The magistrate granted the motion and imposed sanctions against Franco in the amount of $10,000.00.

Franco was local counsel in the lawsuit and her co-counsel, Troy, was admitted into the case pro hac vice. Troy told the magistrate that he had e-mailed the motion to Franco on the afternoon of the deadline and had expected her to file it and he was unaware of her alleged family emergency. He said he did not follow up with Franco to make sure the motion was filed because he had worked with her in the past and believed that she was reliable.

Both Franco and opposing counsel sought to have Troy held jointly and severally responsible for the sanction; however, the magistrate did not agree, stating that “(e)ven assuming, solely for the sake of argument, that Mr. Troy had a duty to supervise Ms. Franco and was somehow derelict in discharging that duty, such dereliction falls well short of the standard to impose sanctions”.  Opposing counsel requested $44,283.00 in attorney fees and costs; however, the magistrate found that amount to be “unreasonably high” and ordered sanctions in the amount of $10,000.00 to be divided among the three opposing counsel.

Bottom line:  This is a very clear example of a lawyer whose false statements in court documents and in a court proceeding were exposed because of social media posts, in this case Instagram.

Be careful out there in our digital social media world…oh and don’t lie and post pictures on social media exposing the lie.

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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New Jersey lawyer is reprimanded for telling Bar discipline official that he should “go f*** himself”

Hello everyone and welcome to this Ethics Alert which will discuss the recent reprimand of a New Jersey lawyer who, inter alia, told a Bar official to GO F**K YOURSELF!!!!!!!!!!!!!!!!!!!!!”.  The case is In the Matter of Michael Rychel, Docket No. DRB 16-250, District Docket No. IIA-2014-0007E.  The April 10, 2017 OAE disciplinary report is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1082359 and the February 9, 2018 discipline Order is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1094024

The lawyer was admitted to practice in New Jersey in 1992.  According to the April 10, 2017 OAE report,  the lawyer sent e-mails to the director of the New Jersey Office of Attorney Ethics (OAE) and an OAE investigator on November 7, 2012.  The e-mails were sent within minutes of each other.

The lawyer’s first e-mail to the OAE investigator stated:  “Do me a big favor and tell Director Centinaro, THANKS FOR THE BACK UP!!!!!!!!!!!!!!!!!!!! I really appreciate his f*****g lack of concern. THIS IS A F*****G ATROCITY THAT AN HONEST LAW ABIDING ATTORNEY SHOULD HAVE TO GO THROUGH THIS S**T!!!!!! TELL CHARLES CENTINARO THAT I SAID TO GO F**K HIM SELF [sic]!!!!!!!! QUOTE ME IN YOUR REPORT!!!!!! NO OFFENSE AGAINST YOU, I KNOW YOU’RE A DECENT HONEST GUY.  mIKE RYCHEL”

In the second e-mail to the OAE director, the lawyer stated:  “Hey Charlie, here’s an example of what you’re [sic] f*****g AMBULANCE CHASING attorneys and their minions do to honest hardworking attorneys who comport their conduct to the RPC’s, 2C and the IRS code. Thanks so much for the back up [sic]. Look personally between me and you GO F**K YOURSEL ELF!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!  Mike Rychel”

The lawyer testified that the reason that he was so upset and sent the e-mails was that he perceived system-wide corruption by ethics officials who handled his claims of misconduct against others, and was “troubled that his grievances had been dismissed.”   He said that he sent the second e-mail to the OAE director because he was afraid the investigator would not convey his message.

The lawyer also admitted that his e-mail was “emotive, that it was discourteous, it lacked civility. Any further inquiry, whether or not it is abusive, whether it’s lewd, whether it’s obscene, I believe is superfluous and goes beyond the parameters of the Rule in terms of proving the necessary — the necessary proofs of a violation of a 3.2.”

The discipline Order reprimanded the lawyer and required the payment of the disciplinary costs and dismissed the grievance filed by the lawyer against the OAE since that was “no reasonable prospect of proving unethical conduct by clear and convincing evidence.”

Bottom line:  This lawyer apparently was so upset that he completely lost his ability to think clearly and he also failed to follow the very simple rule to think before sending an e-mail communication (or text message) which is instantaneous and permanent and cannot be taken back.

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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Wisconsin lawyer suspended for, inter alia, smuggling heavy toothbrushes and red pepper into prison for client

Hello everyone and welcome to this Ethics Alert which will discuss the recent Wisconsin Supreme Court opinion which suspended a Wisconsin lawyer for four months for, inter alia, bringing heavy toothbrushes to client in prison and failing to adequately communicate with a drunken driving client.  The case is In the Matter of Steven Cohen, Case No.: 2015AP1350-D and the opinion is here: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=202686

According to the opinion, the lawyer was admitted to practice law in Wisconsin in 1996. He received a private reprimand in 2007 after his conviction for one count of misdemeanor disorderly conduct which resulted from an dispute involving the lawyer and his wife.

One count of the disciplinary complaint alleged that, in 2013, the lawyer smuggled two heavy toothbrushes and red pepper to a client who was in prison after being convicted on homicide charges.  Prison authorities found the items in a search of the client after discovering a discarded white pastry bag containing a doughnut and an empty toothbrush package.  The authorities also said that the toothbrushes were heavier than the toothbrushes given to inmates and could be made into shanks (sharpened weapons), and that the crushed red pepper could be made into pepper spray.

The opinion states that: “(w)hen correctional officers interviewed Attorney Cohen about the items, he denied knowing anything about them.  Following additional investigation, Attorney Cohen was arrested for delivering contraband into the Columbia Correctional Institution. In February of 2014, the Columbia County district attorney filed a complaint charging Attorney Cohen with one felony count of delivering illegal articles to an inmate and one misdemeanor count of resisting or obstructing an officer.”

In November 2014, the lawyer pled no contest and was found guilty of a felony count of delivering illegal articles to an inmate, along with two misdemeanors.  Judgment on the felony charge was deferred.  The lawyer said that he brought the items to the prison after his client requested a toothbrush and some food and that his only motive was “from concern for the care of the inmate, and desire to serve.”

The second, third, and forth counts of the complaint alleged that the lawyer accepted a $2,500.00 fee from a DUI client without a written fee agreement and then failed to adequately communicate with the client.  When the client demanded a refund, the lawyer returned half of the fee. He denied that he failed to communicate with the client, but did not provide any documentation to support the denial.  The lawyer also claimed that he had e-mailed the client; however, the client said he did not have an e-mail address.

According to the opinion, the lawyer testified that he did not respond to the client’s telephone calls because he was not ready to speak with the client, which was “a normal trial tactic.”  He also said he did not respond since he tells his clients to call him on his cell telephone rather than his land line, and the client called on his land line. He also claimed his secretary does not take messages on the land line.

The lawyer was suspended for 4 months effective December 29, 2017 and required to pay $8,608.20 in disciplinary costs.

Bottom line:  This lawyer appears to have been attempting to provide an imprisoned client with the tools to injure other inmates, whether in self defense or otherwise.  Obviously, this was improper and the lawyer was suspended for 4 months for those actions, as well as his failure to communicate with another client and charging an improper fee.

Be careful out there.     

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Indiana criminal prosecutor suspended for 4 years for twice eavesdropping on confidential attorney/client conversations

Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion suspending a lawyer for 4 years for eavesdropping on confidential attorney/client conversations with no automatic reinstatement.  The case is In the Matter of Robert Neary, No. 46S00-1512-DI-705 (Ind. SC), and the November 6, 2017 disciplinary opinion is here: http://www.in.gov/judiciary/opinions/pdf/11061701per.pdf

The Indiana Supreme Court Disciplinary Commission filed a two-count disciplinary complaint against the lawyer on December 17, 2015, and later amended the complaint.  The amended complaint charged the lawyer with “professional misconduct in connection with his actions in two criminal cases while serving as the chief deputy prosecutor in LaPorte County (Michigan).”

The first count of the complaint alleged that the prosecutor had surreptitiously watched video feeds of an attorney/client confidential conversation in March 2014 at the Michigan City Police Department.  A defense lawyer had flipped a switch that was supposed to prevent the conversation from being recorded; however, the police controlled the live video and audio.

The lawyer and police detectives watched the conversation from the police station’s “war room.”  During the conversation, the defendant (Taylor) told his lawyer where a gun could be found.  The lawyer advised the police detectives not to recover the weapon; however, they ignored his advice and recovered the weapon.

The chief of police later learned of the recording and told the lawyer that he should provide the information the defendant’s counsel.  The lawyer subsequently provided the information to the defendant’s lawyer and also reported his misconduct to the Indiana Bar authorities.

The second count alleged that the lawyer listened to an attorney/client confidential conversation that was recorded in December 2012 at the Long Beach (Michigan) Police Department.  The defendant (Larkin) had agreed to speak with police with his lawyer present, in exchange for being charged with voluntary manslaughter rather than murder.

During an 11-minute break in the questioning, the defendant discussed defense strategy and other confidential matters with his lawyer; however, the recording system was not turned off.  The lawyer viewed the recorded interview that included the attorney/client confidential discussion during the break about a month later.

According to the opinion, “Respondent first viewed the DVD of the interview, including the break discussion, about one month later. Respondent watched the entire break discussion even though the privileged status of that discussion either was, or should have been, immediately apparent to Respondent.  Respondent provided a copy of the DVD, including the break discussion, to Larkin’s counsel but did not mention to counsel that the break discussion had been recorded.”

The Larkin’s lawyer later filed a motion to dismiss the voluntary manslaughter charge alleging prosecutorial misconduct because of the recording of the discussion.  The lawyer’s response, which was sealed, provided the contents of the break discussion and included the written transcript and a DVD.  A judge later unsealed sealed the information.

The opinion noted that both of the cases had led to appeals and stated that the lawyer’s conduct had “fundamentally infringed on privileged attorney-client communications and, at an absolute minimum, has caused significant delays and evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be prosecuted at all.”  The court had reviewed the Taylor matter on appeal and described the eavesdropping as “egregious,” “flagrant,” “unconscionable,” “shameful,” “abhorrent” and “reprehensible.”

After a hearing, the hearing officer found that the lawyer had committed the Bar rule violations charged in the amended complaint and recommended a sanction ranging from a four-year suspension to disbarment.  The Indiana Bar Commission recommended disbarment.

According to the opinion: “(i)n many respects, these proceedings have painted an even more alarming picture of Respondent, in that they show Respondent gradually has retreated from his initial self-report to the Commission and has given evasive and inconsistent explanations and statements regarding the war room eavesdropping.  As aptly found by the hearing officer, ‘Respondent’s ever evolving narrative points to a lack of honesty.’”

The opinion further states: “(t)he severity of the misconduct and Respondent’s repeated transgressions certainly lend support to the notion that he should be disbarred. On the other hand, Respondent has no prior discipline, he self-reported his conduct to the Commission, and several persons testified to his good reputation in the community (although, as noted by the hearing officer, these persons did not appear to have been particularly well informed of the circumstances giving rise to these disciplinary proceedings). At the end of the day, these considerations persuade us that the door should not permanently be closed on Respondent’s legal career and that he should be afforded an opportunity at an appropriate juncture to prove by clear and convincing evidence his professional rehabilitation and fitness to resume practicing law.”

Bottom line: This prosecutor was involved in two separate serious violations of attorney/client confidentiality by viewing and listening to surreptitious recordings and clearly should have known better.  In my opinion, the lawyer was extremely fortunate that he avoided disbarment for 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.

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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California Bar files disciplinary charges against former Los Angeles City Attorney alleging prosecutorial misconduct

Hello everyone and welcome to this Ethics Alert which will discuss the recently filed disciplinary charges filed by the California Bar against former a Los Angeles City Attorney alleging prosecutorial misconduct during a death penalty case that he handled when he was a Los Angeles County deputy district attorney more than 30 years ago.  The case is State Bar of California v. Carmen Anthony Trutanich, Case No. 16-O-12803 (filed February 9, 2017) and is here:  http://members.calbar.ca.gov/courtDocs/16-O-12803.pdf

The lawyer served as the elected Los Angeles City Attorney from 2009-2013.  He was a deputy district attorney for Los Angeles County prior to that time and, while he was a deputy district attorney, he is alleged to have failed to provide exculpatory information in responding to discovery by withholding the true name and address of a witness from the defendant in the People v. Barry Glenn Williams.  He is also alleged to have failed to correct a police detective’s false testimony regarding the detective’s investigation in 1985 and a murder witness’ false testimony regarding the name a person who was driving a vehicle during a crime in 1986.

A federal judge cited prosecutorial misconduct in overturning the defendant’s murder conviction and death sentence in 2016, which resulted in a review by the California State Bar’s Office of Chief Trial Counsel.  The California Bar is notified when a criminal conviction is reversed because of alleged attorney misconduct.

The lawyer will have an opportunity to respond to the charges, which must be proven by the California Bar and approved by the California Supreme Court before any discipline can be imposed.

Bottom line: This lawyer will be defending very serious allegations that allegedly occurred over 3 decades ago.   As you may already know, criminal prosecutors are held to higher ethics standards and have special responsibilities to seek justice and disclose exculpatory information.  If these allegations are true, this prosecutor not only failed to provide exculpatory information, but also actively participated in providing false information and testimony in the case.  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

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Prosecutor misconduct discipline, Prosecutorial misconduct ethics

Michigan board recommends disbarment for lawyer who allegedly lied about, inter alia, being on the 1996 U.S. Olympic team

Hello everyone and welcome to this Ethics Alert which will discuss the recent Michigan Disciplinary Board opinion recommending disbarment for lawyer who allegedly lied about his qualifications and participation on a U.S. Olympic team.  The case is Michigan Grievance Administrator, v. Ali S. Zaidi, Case No. 14-117-GA (January 11, 2017).  The Disciplinary Board’s opinion is here: http://www.adbmich.org/coveo/opinions/2017-01-11-14o-117.pdf

According to the Board opinion, the lawyer made misrepresentations that “run the gamut from outlandish and extravagant to what might be termed modifications of his record inspired by some actual events”.  The lawyer misrepresented and inflated the time of his employment and invented fictional summer associate positions at law firms where he worked at other times.  He was employed for short periods by law firms in Connecticut and Missouri and he falsely claimed that he was admitted to practice in those states.

The lawyer also falsely claimed that he was on the 1996 U.S. Olympic field hockey team and that he had a master of liberal arts from Harvard University.  He also maintained a website that represented that his law firm, called Great Lakes Legal Group, was associated with multiple lawyers at several locations around the country.  The lawyer admitted that this representation was false and that law firm was just an “idea that is still in progress.”

A disciplinary hearing was scheduled before a Board panel.  The lawyer requested that the hearing be continued because of a birthday party for his children and later because he could not obtain child care. The request was denied and the hearing was held without his presence.  The panel found the lawyer guilty, found numerous aggravating factors, and recommended disbarment.

The lawyer filed a petition for review claiming that he missed the hearing because his daughter was recovering from surgery on her eye; however, the disciplinary board found that the lawyer had been provided proper notice and upheld the decision not to continue the hearing.

The lawyer appeared at the sanctions hearing before the panel and admitted that he made misrepresentations regarding his qualifications since he was “scared nobody would hire me if they realized why I was moving around so much…and I wanted to create this impression of longevity and create this impression of consistency of my movements.”

According to the Board opinion, the lawyer “did not present any coherent reason or evidence for his conduct that could be viewed as mitigating, in part, he claimed, because he did not want to inconvenience his character witnesses. Furthermore, he failed to present any argument on what sanction would be appropriate.”

The Board opinion found that, “(c)ollectively, (the lawyer’s) actions are indicative of a cumulative pattern of a lack of honesty and candor, which is contrary to the fundamental characteristics of an attorney. Although respondent does not have any prior discipline, there is no question he has an established track record of deceit. Given the number and pattern of violations, respondent’s dishonesty, and his overall lack of candor and cooperation, the panel properly found that disbarment is appropriate in this case.”

Bottom line:  This a somewhat bizarre case, to put it mildly.  The lawyer appears to have a problem with the truth and apparently tried to justify his actions with self-serving excuses.  The Michigan Supreme Court will now review the case and determine the sanction.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

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