Category Archives: Lawyer conduct prejudicial to the administration of justice

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

Florida Supreme Court disbars 3 lawyers for misconduct in the settlement of multiple PIP and bad faith claims

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which disbarred 3 Florida lawyers for misconduct in settling multiple PIP and bad faith claims.  The opinion is The Florida Bar v. Charles Jay Kane, The Florida Bar v. Harley Nathan Kane, The Florida Bar v. Darin James Lentner, No. SC13-388 (October 6, 2016) and the opinion is here:  http://www.floridasupremecourt.org/decisions/2016/sc13-388.pdf.

The lengthy opinion outlines and discusses the complicated underlying facts, including the involvement of the lawyers in settling the PIP claims and failing to inform and misleading both the clients and the lawyers who were handling separate bad faith claims against Progressive Insurance.   Although this is a fairly lengthy Ethics Alert, the relatively short format of my Ethics Alerts do not permit a full discussion of the case, and readers are urged to read the case for more information and clarification.

According to the opinion, the lawyers took on the representation of 441 PIP claims on behalf of various medical providers.  Two other lawyers were retained to file bad faith claims.  The claims were filed in a matter called the “Goldcoast” litigation, in which only 37 of the PIP clients were involved.  Each of the PIP law firms (Kane & Kane, Watson & Lentner, and Marks & Fleischer) and each of the bad faith attorneys executed a contract agreeing to jointly represent all thirty-seven plaintiffs.

During the bad faith litigation, the bad faith lawyers were able to compel disclosure of documents which strengthened the bad faith claims.  At mediation on the bad faith claims, Progressive offered only $3.5 million, which offer was rejected.

The disclosure of the documents apparently caused Progressive to consider settlement.  Progressive’s counsel later initiated settlement negotiations with the PIP lawyers only and the bad faith lawyers were not part of those negotiations.  Progressive  offered an aggregate amount of $14.5 million, to settle all of the claims, including both the PIP and bad faith claims, and attorney fees.  On May 16, 2004, all six of the PIP lawyers (including the disbarred lawyers) met with lawyers from Progressive to put the agreement in writing.  The bad faith lawyers were not told of Progressive’s offers, and they were not asked to attend the meeting.

“As a result of the meeting, the PIP lawyers signed a ‘Memorandum of Understanding’ (MOU) settling all cases and claims, subject to client agreement.  Pursuant to the MOU, the clients were required to release all claims against Progressive, including both PIP claims and bad faith claims. The MOU did not specify how the settlement funds would be allocated and it was left to the PIP lawyers to divide the funds between the claims and the costs and fees.”

“The only requirement to trigger the $14.5 million payment was a certain number of signed client releases: 100 percent of the named Goldcoast case plaintiffs and 80 percent of the remaining PIP clients of all three PIP firms. Also as a part of the MOU, the PIP lawyers agreed to defend, indemnify, and hold the Progressive entities harmless from any claims of their clients.  Several days later, the PIP lawyers, including the disbarred lawyers, met with one of the bad faith lawyers, Larry Stewart, and offered him $300,000 to compensate all three bad faith attorneys for their work on the bad faith case. The PIP lawyers did not disclose the terms of the settlement with Progressive, stating only that the cases and claims had been settled.”

According to the opinion, “the bad faith attorneys then wrote a letter to each of the named plaintiffs in the Goldcoast case, explaining their efforts to compel production of Progressive’s internal documents and the April 2004 mediation. The letter asserted that as a result of the PIP lawyers’ secret settlement with Progressive, the clients’ bad faith claims may have been ‘compromised or even sacrificed.’”

“The bad faith attorneys sent a copy of their letter to each of the PIP law firms and asked the PIP lawyers to forward the letter to their clients who were not named in the Goldcoast case; however, the lawyers did not forward the letter as requested. Instead, Respondent Charles Kane drafted a letter, titled ‘Notice of Disagreement Between Counsel’ (disagreement letter), for the PIP law firms to send to clients who were named as plaintiffs in the Goldcoast case.  The letter contained misleading statements regarding the bad faith attorneys and their efforts to pursue the bad faith claims on behalf of the clients.”

An Amended Memorandum of Understanding (AMOU) was later drafted and, after the law firm contacted the clients and obtained the releases, the settlement funds were paid by Progressive.  Kane & Kane received $5.25 million. The firm paid $672,742 to its PIP clients, $433,202 in costs, and took $4,144,055 in attorney fees. Watson & Lentner received $3,075,000, and the firm paid $361,470 to its PIP clients, $190,736 in costs, and took $2,522,792 in attorney fees. Once the firms received the settlement money, the bad faith attorneys were discharged, and a notice of voluntary dismissal with prejudice was filed, ending the Goldcoast case.

The bad faith lawyers then sued the PIP lawyers and, in April 2008, Judge David F. Crow entered a final judgment in favor of the bad faith attorneys on their quantum meruit and/or unjust enrichment claims. The final judgment included extensive findings as to the PIP lawyers’ actions, noting that the matter “could be a case study for a course on professional conduct involving multi-party joint representation agreements and the ethical pitfalls surrounding such agreements.”

The Supreme Court opinion upheld the finding of guilt and rule violations made by the referee and disbarred all three lawyers.  “We agree with the referee that the PIP lawyers’ most egregious violation occurred when they abandoned their clients’ bad faith claims in favor of a greater fee for themselves.”  The opinion states that the “considerable violation of (the lawyers’) ethical responsibilities to their clients and the legal system, entirely for their own financial interests and at the expense of their clients, warrants disbarment.

Bottom line:  The 3 lawyers were disbarred for the misconduct which is briefly described above and is further detailed in the opinion.

The opinion also addressed a very important practice point for lawyers who handle PIP claims on behalf of medical providers since it upheld the referee’s findings that all three lawyers failed to provide their clients with closing statements in the PIP cases in violation of Florida Bar Rule 4-1.5(f).  “Although there was testimony presented to the referee that a closing statement is not typically provided in a PIP case because the attorney fee is not taken as a portion of the client’s overall recovery, the referee found, and we agree, that there is no specific exception in the Bar Rules authorizing this practice.”  The Court found that lawyers must provide closing statements to clients in PIP first party claims, even though the fees and costs are typically paid by the insurance company and not taken out of the client’s settlement funds.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer conflict of interest, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper fees, Lawyer misrepresentation, Lawyer sanctions, Lawyer violation of Florida Bar Rule 4-1.5(f) failure to provide closing statement

Zealous representation or lawyer misconduct? Where does the Florida Supreme Court draw the line?

Hello everyone and welcome to this Ethics Alert will discuss the lawyer’s duty to competently and zealously represent a client and the Florida Supreme Court decisions addressing when a lawyer’s conduct may cross the line and constitute misconduct and violate the Florida Bar Rules.  Lawyers understand that they should zealously represent clients and, while that understanding is correct, the Supreme Court of Florida has repeatedly stated that lawyers must act professionally and ethically during the course of the representation, both in and out of the courtroom.

The Florida Bar Rules do not use the word “zealous”; however, the Preamble to Chapter 4 of the Bar Rules states, in part, as follows:

As a representative of clients, a lawyer performs various functions.  As an adviser, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.  As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.  As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.  As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others… A lawyer’s responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious.  Zealous advocacy is not inconsistent with justice (emphasis supplied).

The Supreme Court of Florida has addressed zealous advocacy/ethical misconduct in multiple opinions through the years and has addressed when zealous conduct is a violation the Florida Bar Rules.  The following cases are a sample of those opinions and the evolution of the Court’s position on the issue.

In The Florida Bar v. Martocci, 791 So.2d 1074 (Fla. 2001), the Court reprimanded and imposed a two year probation on a lawyer who engaged in unprofessional and abusive conduct and for unethical comments and behavior toward opposing counsel, the opposing party, and the opposing party’s family during depositions, in court, and outside the courtroom during breaks in the proceedings.  The attorney was representing the husband in a bitter divorce, child custody, and child dependency matter.  As a condition of the probation, the attorney was required to be evaluated by Florida Lawyers Assistance, Inc. for possible anger management skills training or mental health assistance or both.

In The Florida Bar v. Morgan, 938 So.2d 496 (Fla.2006), the Court suspended an attorney for ninety-one days for courtroom misconduct. The attorney had been publicly reprimanded and suspended for ten days on two prior occasions. The attorney refused to acknowledge the wrongful nature of his conduct but the referee found (and the Supreme Court adopted) the mitigating factor of good character and reputation, including the provision of pro bono legal services, serving as a role model for an assistant state attorney, and being held in high esteem as an excellent and passionate advocate by two judges and an attorney.

In The Florida Bar v. Abramson, 3 So.3d 964 (Fla. 2009), the attorney was found to have been repeatedly disrespectful and rude to the trial judge at a hearing and was suspended for ninety-one days.  The Supreme Court opinion stated that:

“Abramson’s misconduct was egregious. He was disrespectful and confrontational with the presiding judge in an ongoing courtroom proceeding in the presence of the pool of prospective jurors in a criminal case. Regardless of any perceived provocation by the judge, Abramson responded inappropriately by engaging in a protracted challenge to the court’s authority. His ethical alternative, if he believed the trial court had erred, was by writ or appeal. He has also been publicly reprimanded twice before for serious misconduct.  See also The Florida Bar v. Wasserman, 675 So.2d 103 (Fla. 1996) (two six-month consecutive suspensions on an attorney in his fifth discipline case before the Court where the attorney had an angry outburst in court after an unfavorable ruling and expressed contempt for the court, stated in the hallway outside the courtroom that he would counsel his client to disobey the court’s ruling, and used profane language over the telephone to a judge’s judicial assistant);  The Florida Bar v. Price, 632 So.2d 69 (Fla.1994) (ninety-one day suspension for appearing in court under the influence of alcohol and behaving in a hostile, abrasive, and belligerent; reinstatement conditioned on ability to show that satisfactorily completion of an evaluation and course of treatment for substance abuse approved by the Bar.”

In The Florida Bar v. Norkin, 132 So.3d 77 (Fla. 2013), the lawyer was suspended for two (2) years and required to appear before the Florida Supreme Court for a public reprimand.  The Court’s opinion detailed numerous instances of misconduct by the lawyer, including engaging in “tirades and antagonistic behavior” in exchanges with judges and other attorneys.  The opinion noted that it is “profoundly concerned with the lack of civility and professionalism demonstrated by some Bar members. The Court has repeatedly ruled that unprofessional behavior is unacceptable.  (citations omitted).”  The lawyer appeared before the Court for the reprimand in February 2014, which was read by then Chief Justice Ricky Polston, and smirked during the proceeding.  The opinion is here:  Florida SC Norkin 2013

In The Florida Bar v. Norkin, 183 So. 3d 1018 (Fla. 2015), The Florida Bar filed a petition for contempt and a complaint alleging that Norkin had failed to comply with the Court’s (and Bar Rule’s) requirement that he notify clients of his suspension and provide an affidavit confirming same and that the lawyer “had engaged in the practice of law after the effective date of the suspension by sending an e-mail to opposing counsel in a case pending in the circuit court questioning a hearing date and discussing the results of the hearing and the legal sufficiency of the motion addressed, and by preparing a pleading for his former client, which the client filed in the circuit court case.”  He also sent disparaging e-mails to Bar Counsel and admitted during the underlying Bar proceedings that he had smirked during the public reprimand before the Court.

The referee granted summary judgment in favor of the Bar and recommended disbarment.  In an unanimous opinion dated October 8, 2015 (which is here Florida SC Norkin 10/8/15, the Court permanently disbarred the lawyer and stated:

“As found by the referee in his report, Norkin’s e-mails to bar counsel referred to bar counsel as “evil” and “despicable”; called the proceedings against him “the most unjust act in judicial history”; stated that bar counsel had no conscience; and stated, “I’m preparing the lawsuit against you. Keep an eye out.”  At the hearing on the motion for sanctions, the referee questioned Norkin about the e-mails and his behavior during the public reprimand administered by this Court. In response, Norkin asserted his “right to speak freely and to express his beliefs in the manner of his choosing,” and freely admitted that during the public reprimand, he intentionally smirked and stared down each Justice one by one. We have disciplined attorneys for similar conduct as a violation of rule 4-8.4(d), including Norkin himself. See Norkin, 132 So. 3d at 86; Fla. Bar v. Martocci, 791 So. 2d 1074, 1075, 1078 (Fla. 2001) (finding that making insulting facial gestures at opposing counsel, making sexist comments, and disparaging opposing counsel violated rule 4-8.4(d)); Fla. Bar v. Buckle, 771 So. 2d 1131, 1132 (Fla. 2000) (finding that humiliating and intimidating letter, sent by attorney to alleged victim of his client, violated rule 4-8.4(d)). Accordingly, we approve the referee’s recommendation.

Here, disbarment is amply supported. As noted by the Bar, the Court has not hesitated to disbar attorneys who continue to practice law after being suspended. See Fla. Bar v. Lobasz, 64 So. 3d 1167, 1173 (Fla. 2011) (disbarring attorney for practicing law while suspended, even where attorney suffered from posttraumatic stress disorder, anxiety, and depression); Fla. Bar v. D’Ambrosio, 25 So. 3d 1209, 1220 (Fla. 2009) (disbarring suspended attorney who held himself out as eligible to practice law by sending letters on firm letterhead subsequent to suspension); Fla. Bar v. Forrester, 916 So. 2d 647, 654-55 (Fla. 2005) (disbarring attorney for practicing law while suspended); Fla. Bar v. Heptner, 887 So. 2d 1036, 1045 (Fla. 2004) (disbarring attorney for multitude of violations, but noting that disbarment would be appropriate solely on basis of continuing to practice law after being suspended); Fla. Bar v. Rood, 678 So. 2d 1277, 1278 (Fla. 1996) (disbarring attorney for practicing while suspended); Fla. Bar v. Greene, 589 So. 2d 281 (Fla. 1991). Moreover, given Norkin’s continuation of his egregious behavior following his suspension and during the administration of the public reprimand, we conclude that he will not change his pattern of misconduct. Indeed, his filings in the instant case continue to demonstrate his disregard for this Court, his unrepentant attitude, and his intent to continue his defiant and contemptuous conduct that is demeaning to this Court, the Court’s processes, and the profession of attorneys as a whole. Such misconduct cannot and will not be tolerated as it sullies the dignity of judicial proceedings and debases the constitutional republic we serve. We conclude that Norkin is not amenable to rehabilitation, and as argued by the Bar, is deserving of permanent disbarment. See Fla. Bar v. Behm, 41 So. 3d 136, 139-40 (Fla. 2010) (stating that persistent course of unrepentant misconduct warrants permanent disbarment); Fla. Bar v. Carlson, 183 So. 2d 541 (Fla. 1966) (stating that permanent disbarment is warranted where conduct of respondent indicates he is beyond redemption).”

Bottom line:  While Norkin may be an extreme case, lawyers must be on notice that the Supreme Court of Florida has become far less tolerant of rude, belligerent, and disrespectful behavior, regardless of whether it is couched in terms of “zealous advocacy” on behalf of a client.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice 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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Missouri Supreme Court suspends lawyer who used payroll document and opposing counsel’s written direct exam questions from e-mails hacked by client

 

Hello and welcome to this Ethics Alert update blog which will discuss the disciplinary case against a Missouri lawyer who failed to disclose payroll document and direct examination questions of opposing counsel which were obtained by his client/husband by hacking the wife’s e-mail account, used them at a settlement conference, and planned to use them at a trial+.  The disciplinary case is In Re: Joel B. Eisenstein, No. SC95331 (Missouri SC 4/5/16) and the opinion is here: http://www.courts.mo.gov/file.jsp?id=99378.  My previous blog on this case is here:  https://jcorsmeier.wordpress.com/2016/02/11/missouri-lawyer-alleged-to-have-used-payroll-document-and-opposing-counsels-written-direct-exam-questions-from-e-mails-hacked-by-client/.

According to the disciplinary opinion, the lawyer was representing the husband in a dissolution matter.  The husband hacked the wife’s e-mail account and obtained her payroll documents and a list of direct examination questions prepared by the wife’s lawyer for the upcoming trial.  The husband gave the lawyer the payroll document in November 2013 and he used the payroll information in the document during a mediation/settlement conference before the trial.

During the trial, the lawyer provided documents to the opposing counsel which included a list of the direct examination questions which the opposing counsel had prepared and sent to her client via e-mail.  The opposing counsel asked the lawyer why he had the list of questions and he told her that there were some leading questions and he planned to object to them.

During a hearing that followed on the issue, the lawyer stated that his paralegal had erroneously included the questions in the stack of exhibits and claimed that he was joking when he made the remark about the leading questions to opposing counsel.  He admitted that he had received the documents from his client and failed to disclose them to opposing counsel.  The lawyer later sent opposing counsel an e-mail stating: “Rumor has it that you are quite the ‘gossip’ regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel’”.

According to the opinion, the lawyer violated Missouri Bar rules by failing to promptly disclose to opposing counsel that he had received the information/documents from his client and by sending the threatening e-mail to opposing counsel, which was prejudicial to the administration of justice.  According to media reports, the lawyer is 70 years old, and the opinion set out the lawyer’s prior disciplinary record:

Mr. Eisenstein’s license has been disciplined on five prior occasions. In 1991 and again in 1999, Mr. Eisenstein was admonished for violating Rule 4-3.5(b) by engaging in ex parte communications with the judge. In 1997, this Court suspended Mr. Eisenstein after he  pleaded guilty to a federal misdemeanor for willfully failing to file an income tax return. In 2001, Mr. Eisenstein was admonished for violating Rule 4-8.1(b) by failing to respond to the OCDC’s request for information regarding an ethics complaint. Finally, in 2004, Mr. Eisenstein was admonished for violating Rule 4-3.3(d) for failing to inform the court of material facts relevant to a pending issue.

The opinion of the majority suspended the lawyer indefinitely and for a minimum of 6 months with reinstatement conditioned upon the lawyer meeting the requirements for readmission.  Two justices dissented and said that the lawyer should be suspended indefinitely and for a minimum of 12 months.  The dissenting opinion stated it was inappropriate for the lawyer to solicit the bar and judiciary to influence the state supreme court in the case and “(o)ne of these solicitations took the form of an e-mail titled ‘I’m too old for this xxxx!!’ (Expletive deleted.)” The e-mail from the lawyer included what he claimed was a “complete history” of the case which the dissent stated “varies greatly from the facts” found by the disciplinary hearing panel.

Bottom line:   As I stated in my earlier blog, this was very serious misconduct and the opinion makes it clear that the lawyer knew that the documents were obtained without the wife’s permission and did not advise opposing counsel.  Compounding the misconduct, the lawyer used the improperly obtained payroll document to his advantage  at a mediation/settlement conference and may also have been planning to use the direct examination questions to his advantage without opposing counsel’s knowledge until the paralegal included the document with the copies of exhibits by mistake.  The lawyer also sent an e-mail threatening the opposing attorney if she pursued the matter and tried to improperly influence the court.   The sanction may have been more severe in a different jurisdiction.

Be careful out there…and of course, do not do this.

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice 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.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Ohio Supreme Court permanently disbars lawyer who was videotaped in court practicing law while indefinitely suspended

Hello and welcome to this Ethics Alert blog which will discuss another recent Ohio Supreme Court opinion disbarring a lawyer who was caught on video representing a client in court 3 times, beginning less than three months after his license was indefinitely suspended.  The case is Cleveland Metro. Bar Assn. v. Pryatel, Slip Opinion No. 2016-Ohio-865. (March 9, 2016).  The disciplinary opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-865.pdf and the link to the oral argument in the case is here: http://www.ohiochannel.org/video/case-no-2015-1005-cleveland-metropolitan-bar-association-v-mark-r-pryatel.

According to the opinion, the lawyer was indefinitely suspended in April 2013 for multiple violations of lawyer disciplinary rules, including misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  The lawyer was subsequently recorded on video and audio tapes representing a client (Richard Brazell) in court on three separate occasions in June and July 2013.

The lawyer first attended a probation violation hearing and stood with the client, admitting the probation violation on the client’s behalf, and speaking for the client.  The client’s girlfriend and stepfather testified before the professional conduct board that they paid the lawyer $450.00 for the representation (for both the lawyer’s previous representation and for future representation) and that the lawyer did not inform them that his license was suspended.

Two days after the probation hearing, the lawyer appeared with the client a second time on unrelated charges in another court.  An audio recording of the client’s arraignment indicated the lawyer spoke on the client’s behalf.  He told the magistrate that he was not the client’s attorney and the client was representing himself as the two worked out their business relationship. The magistrate told the board that the lawyer did not indicate that his license was suspended.

About a month later, the lawyer attended a hearing with the client a third time, answered questions on his behalf, and entered a plea to a violation of probation for the client before the judge.  The prosecutor and judge in that case both told the board that they believed that the lawyer was representing the client.  The judge became suspicious and asked his assistant to research the lawyer and found out that he was suspended.

When confronted with the allegations that he had represented the client in a deposition in the Bar matter, the lawyer denied under oath that he appeared with the client at the probation violation hearing or municipal court proceedings, and claimed that he told the client’s family that his license was suspended and that he was not paid for his legal work.  The opinion stated:  “All of these statements (by the lawyer) were later contradicted by testimonial, video, audio, and documentary evidence presented at the disciplinary hearing.”

The board found the following aggravating circumstances: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary process, the submission of false statements during the disciplinary process, and a refusal to acknowledge the wrongful nature of the conduct.  Although the board acknowledged that the lawyer had been involved with the Ohio Lawyers Assistance Program, it found no mitigating factors.

The lawyer objected to the board’s finding that he practiced law while suspended and argued that his actions in the second appearance did not constitute the “practice of law” since he did not advocate for the client, cross-examine any witnesses, cite legal authority, or handle any legal documents.  The opinion rejected that argument and cited Cleveland Bar Assn. v. Comp Management, Inc., a 2006 case stating that the practice of law is not limited to advocacy or filing of legal documents, but also includes representation before a court, preparation of legal documents, management of client actions, all advice related to law, and all actions connected with the law taken on a client’s behalf.  “Here, the evidence demonstrated that the lawyer accompanied the client to the court, stood with him before the bench, spoke on his behalf, waived his legal rights as a criminal defendant, and entered a plea for him.  Under any definition, the lawyer’s appearance on behalf of the client constituted the practice of law.”

The lawyer claimed that he had been “sandbagged” by the bar association which investigated the Bar matter because the case against him did not originally contain the video of his appearance at the probation hearing. The bar association later supplemented its case with the video, and the lawyer had more than two weeks to review it before his disciplinary hearing. The opinion found that the lawyer did not provide any explanation to support the allegation that the introduction of the video prevented him from adequately defending himself against the charges.

The lawyer argued that he should not be disbarred because his actions involved a single client who benefited from his assistance and that he helped the client for “sympathetic and altruistic reasons.”  He also argued that he cooperated during the disciplinary process and had a history of providing quality legal services to indigent clients, and other lawyers charged with the same misconduct were not disbarred.  His lawyer argued at the oral argument that he had psychological and/or other issues and was participating in Ohio’s lawyer assistance program, and that the indefinite suspension should be again imposed.

The majority of the justices disagreed and permanently disbarred the lawyer stating:  “Less than three months after our order forbidding Pryatel to appear on behalf of another before any court, he represented a client in three court proceedings. As the board found, his actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”  Three justices dissented, stating that the indefinite suspension should be continued.

Bottom line: This lawyer had the apparent audacity to represent a client on 3 different occasions and in 2 separate cases beginning less than 3 months after he was indefinitely suspended from the practice of law for, among other things, misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  As the opinion states: “(the lawyer’s) actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”

Be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, 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.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

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, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer false statements, Lawyer permanent disbarment for contempt of suspension order, Lawyer sanctions, Lawyer sanctions for unlicensed practice of law, Lawyer unauthorized practice of law while suspended, Lawyer unlicensed practice of law, Lawyer violation of court order, Lawyer wilful failure to comply with court order, Unauthorized practice of law, unauthorized practice of law while suspended, Unlicensed practice of law