New Jersey lawyer suspended for, inter alia, revealing confidential information in review of former client’s business

Hello everyone and welcome to this Ethics Alert, which will discuss recent New Jersey Supreme Court opinion which imposed a one year suspension on a lawyer for, inter alia, providing a negative public review of a client’s business on Yelp and disclosing confidential information in the review.  The case is: In the Matter of Brian LeBon Calpin (New Jersey Supreme Court No. D-67 083821).  The May 7, 2020 opinion is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1129260

The NJ SC opinion essentially adopts the NJ Disciplinary Review Board Decision which found that the lawyer posted a negative public review of the client’s massage business on June 24, 2018 on the Yelp website after the client had posted public negative online reviews of his legal services.  The lawyer had ceased representing the client in “early summer 2017”.  The DRB Decision is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1124239

According to the Decision, the lawyer’s review of the former client’s massage business on Yelp stated:

“Well, Angee is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

The Decision further states that, in his response to the ethics complaint, lawyer stated:

“As to the Yelp rating about (the former client’s) massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment. However, it was not unethical. That posting has subsequently been taken down.”

The Decision found that, although the information posted by the lawyer may have been publicly available, the information was not generally known; therefore, the “generally known” exception in the New Jersey Bar rules regarding client confidentiality did not apply.  The decision also quoted ABA Formal Opinion 479 (December 15, 2017):  “[T]he phrase ‘generally known’ means much more than publicly available or accessible. It means that the information has already received widespread publicity.”

The Decision also found that the lawyer’s conduct in three other client matters violated ethics rules related to neglect, diligence, failure to keep clients informed, failure to deliver client funds or property, and failure to return client property after representation. The lawyer also told to a Bar investigator that he had sent a refund check to a former client, which was a misrepresentation.

The lawyer had prior discipline for “similar ethics infractions, evidencing his failure to learn from past mistakes: a June 19, 2014 reprimand for gross neglect, lack of diligence, and failure to communicate with a client, and a January 24, 2017 admonition for lack of diligence in a client matter.”

Bottom line:  This is another unfortunate example of a lawyer reacting badly to a client’s negative online review and including confidential (and not generally known) information in responding to a negative client review.  As I have said and written many times, lawyers are not permitted to include client confidential information in responding to negative online reviews that are in the public domain.

Stay safe and healthy and 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.

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

 

Florida Bar Ethics Committee votes to publish proposed opinion providing guidance in responding to negative online reviews

Hello everyone and welcome to this Ethics Alert, which will discuss the recent vote by the Florida Bar’s Professional Ethics Committee (PEC) to publish a proposed ethics advisory opinion providing guidance to lawyers in responding to negative online reviews and complaint for comment.  Proposed Ethics Advisory Opinion 20-1 is here: https://www.floridabar.org/the-florida-bar-news/committee-adopts-ethics-opinion-regarding-online-reviews/

The PEC voted at its February 7, 2020 meeting to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members.

The Florida Bar ethics staff previously issued Florida Bar Staff Opinion 38049 in 2018 in response to a lawyer’s inquiry.  The BOG approved the staff opinion on June 15, 2018; however, since the opinion was a reply to a single lawyer, it was not published.  I discussed  Florida Bar Staff Opinion 38049 provided a link to that opinion here: https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/

That staff opinion was minimally revised by the PEC and will be published online and in print in The Florida News for Bar member comments. The proposed formal advisory opinion concludes:

“Therefore, if the inquirer chooses to respond to the negative online review and the inquirer does not obtain the former client’s informed consent to reveal confidential information, the inquirer must not reveal confidential information regarding the representation, but must only respond in a general way, such as that the inquirer disagrees with the client’s statements. The inquirer should not disclose that the court entered an order allowing the inquirer to withdraw because that is information relating to the client’s representation and the client did not give informed consent for the inquirer to disclose.”

The proposed advisory opinion states that Florida Bar Rule 4-1.6(c) provides 6 exceptions permitting or mandating that a lawyer reveal confidential client information; however, none of the exceptions addresses online reviews.  The proposed opinion also refers to the comment to Florida Bar Rule 4-1.6, which states:

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation….(t)he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

The proposed opinion states that the language in Texas Ethics Opinion 622 “would be an acceptable response” to negative online reviews:

“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”  “The (lawyer) also may state that the (lawyer) disagrees with the facts stated in the review.”

According to the Bar’s Notice, the PEC will consider any comments received at their meeting on Friday, June 19, 2020 in Orlando.

“Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 31, 2020.”

Bottom line:  Lawyers must be aware that negative online reviews do not fall within any of the exceptions which permit or require revealing confidential client information and, absent client informed consent, lawyers are not permitted to reveal confidential information in responding to the negative review.  In our digital and social media age, perhaps a change in the Bar Rule permitting such responses would be appropriate.

I will keep you advised 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

 

Ransomware attack against South Florida digital record storage entity block law firm’s access to electronic records

Hello everyone and welcome to this Ethics Alert, which will discuss a recent Miami Herald article discussing a ransomware attack against a South Florida software company that manages electronic records for thousands of law firms nationwide in which digital legal documents have been held hostage.  The October 25, 2019 Miami Herald article is here:  https://www.miamiherald.com/news/local/article236645058.html

According to the Herald article, “a Florida law firm was forced to request more time to meet a filing deadline in a gender-discrimination employment case in federal court because it could not access its electronic documents stored with TrialWorks.”  “The firm’s attorney representing the deputy (in the Citrus County federal gender discrimination lawsuit) cited the TrialWorks’ software problem, saying the company ‘has shut down access’ to critical documents in the case. The law firm needed the documents to address a dispute over the testimony of an expert witness for Citrus County. Its response was due Friday (October 25, 2019).”

“Since Oct. 11, 2019, plaintiff’s counsel, as well as other TrialWorks clients, have been unable to access documents,” says the law firm’s motion requesting more time. “As of Oct. 24, 2019, plaintiff’s counsel remains unable to access all the necessary documents required to respond.”  “The deadline issue was quickly resolved because attorneys for Citrus County did not oppose the law firm’s request. Melton’s firm has until Nov. 14 to respond, assuming it can gain access before then to crucial records at TrialWorks.”

The article also states:  “TrialWorks acknowledged it ‘was recently targeted by a ransomware incident that did not affect our software but did prevent approximately 5 percent of our customers … from accessing their accounts.’”  “In a statement, the company said it started an internal investigation and retained independent cybersecurity experts. “We have been working around the clock to restore normal operations for our customers as quickly as possible, and nearly all customers have had access restored within a week.”  “Company officials said they have not contacted federal authorities about the ransomware attack but plan to share information from the internal investigation with law enforcement.”

“Earlier this month, TrialWorks began alerting its customers about the security breach and initially indicated it was caused by a Microsoft service outage affecting Outlook desktop and mobile apps, according to court records. But the company’s customer alerts became more ominous over the past two weeks, including one that cited a ‘ransomware incident.’”

Bottom line:  This unfortunate ransomware incident highlights the vulnerability of digital information, including information stored digitally by litigation document assistance providers such as TrialWorks.

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

Two Ohio lawyers receive stayed six-month suspensions for violating client confidences while engaged in a personal relationship

Hello everyone and welcome to this Ethics Alert which will discuss the recent Ohio Supreme Court Order imposing a six month stayed suspension on two lawyers who violated client confidences while engaged in a personal romantic relationship.  The case style is: The Disciplinary Counsel v. Holmes and Kerr, Slip Opinion No. 2018-Ohio-4308 and the opinion is here:  https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-4308.pdf

According to the stipulated facts, the lawyers began a romantic relationship after meeting at a conference in November 2014. They represented different public school districts and were employed by different law firms.  Between January 2015 and November 2016, the lawyers exchanged more than a dozen e-mails in which they disclosed confidential client information.

According to the opinion, one of the lawyers (Kerr) generally forwarded e-mails from her clients asking for documents to the other lawyer (Holmes), who then provided the legal documents that he had prepared for clients with similar requests.  According to the opinion, “In about one-third of these email exchanges, Holmes had ultimately completed Kerr’s work for her.”

The opinion further states that Holmes was terminated from his law firm in June 2016 after the disclosure of confidential client information was discovered.  A partner in Holmes’ law firm then filed a Bar complaint against Holmes and notified Kerr’s firm about the confidential e-mail exchanges.  Notwithstanding the termination and notification, the lawyers continued to trade information. Kerr resigned from her law firm in November 2016.

Both lawyers stipulated to a violation of two Bar rules: improper disclosure of confidential information, and conduct which adversely reflects on the lawyer’s fitness to practice law.  The opinion states: “We agree that Holmes and Kerr engaged in the stipulated misconduct and that based on our precedent, a stayed six-month suspension is appropriate. We therefore adopt the parties’ consent-to-discipline agreements.”

Bottom line: This is a rare example of lawyers who were involved in a personal relationship being disciplined for violating attorney/client confidentiality.  The Ohio disciplinary agency was advised of the lawyers’ conduct by a partner in one of the lawyer’s firm, and both lawyers stipulated that they had violated Bar rules related to confidentiality and conduct adversely reflecting the lawyer’s fitness to practice.  Unless there is an exception or the client consents, confidential information cannot be provided to another person or otherwise disseminated.

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

ABA Formal Opinion 479 addresses when lawyers may use “generally known” information related to a former client

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 479, which was published on December 15, 2017 and addresses when a lawyer may use information related to the representation of a former client which is to the actual or potential disadvantage of the former client when the information has become “generally known”.  The ABA opinion is here: ABA Formal Opinion 479

ABA Model Rule 1.9(c)(1) provides that a lawyer “shall not use information relating to former client’s representation to the disadvantage of the former client except as (the Model) Rule would permit or require with respect to a [current] client, or when the information has become generally known.”

The opinion also states that the “generally-known” exception to Rule 1.9 was first included in the 1983 ABA Model Rules; however, there is no consensus regarding when information is “generally known.” New York, Massachusetts, and Illinois Bar opinions and ethics commentators agree that “generally known” means “more than publicly available or accessible. It means that the information has already received widespread publicity.”

According to the opinion, the “generally known” exception to the obligations related to former-client confidentiality is limited to the following:

(1) use of the former client information, not the disclosure or revelation of the information,

(2) use of the information only if the information has become widely recognized by the public in the relevant geographic area or widely recognized in the former client’s industry.

The opinion quotes an ethics commentator:

“[T]he phrase “generally known” means much more than publicly available or accessible. It means that the information has already received widespread publicity. For example, a lawyer working on a merger with a Fortune 500 company could not whisper a word about it during the pre-offer stages, but once the offer is made—for example, once AOL and Time Warner have announced their merger, and the Wall Street Journal has reported it on the front page, and the client has become a former client—then the lawyer may tell the world. After all, most of the world already knows. . ..[O]nly if an event gained considerable public notoriety should information about it ordinarily be considered “generally known.”

The fact that information has been discussed in court or may be accessible in public records does not necessarily make the information widely recognized (and “generally known”) under Model Rule 1.9(c) since information that is publicly available is not necessarily widely recognized and, if a search of court records or library shelves is required to find the information, it would not be  widely recognized.

Bottom line: This ABA opinion provides guidance on important ethics issues related to when a lawyer is permitted to use information that is detrimental to a former client when it has become “generally known” and provides guidance.  Although the opinion (and most state Bar rules) permit lawyers to use, but not disclose, “generally known” information even if it disadvantages a former client, lawyers should always carefully consider whether this would be prudent and, if the lawyer decides to do so, obtain the client’s consent in advance.

This ABA opinion is not binding and the analysis is applicable in most, if not all jurisdictions, including Florida; however, lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

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

 

 

ABA Formal Opinion 480 addresses lawyer/client confidentiality obligations related to lawyer blogs and other public commentary

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 480, which was released on March 6, 2018 and addresses lawyer ethics and confidentiality obligations when engaging in blogging and other public commentary.  The ABA Formal Opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.authcheckdam.pdf

The opinion initially sets forth the various types of lawyer public communications and commentary, including online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that ‘followers’ (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively ‘public commentary’).”

The opinion provides important information regarding the broad scope of lawyer/client confidentiality under the rule, the limited exceptions to the rule, and whether a lawyer can pose a “hypothetical” to avoid violating the rule.  The information is below with relevant portions in bold:

This confidentiality rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”  In other words, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information.

Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohibited from commenting publicly about any information related to a representation. Even client identity is protected under Model Rule 1.6.  Rule 1.6(b) provides other exceptions to Rule 1.6(a).  However, because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.

Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.  The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that other may be aware of or have access to such knowledge.

A violation of Rule 1.6(a) is not avoided by describing public commentary as “hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.  Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.

The opinion concludes that “(l)awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”

Bottom line:  This ABA opinion addresses the ethics issues related to lawyer blogs and public commentary and client confidentiality and provides guidance.  The opinion is not binding; however, it provides important information and the analysis is applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

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

 

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