Category Archives: lawyer confidentiality

Filed under Attorney Ethics, Confidentiality, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Uncategorized

Tagged as Attorney Ethics, client confidentiality, confidentiality, Florida Bar, Lawyer competence, lawyer ethics, Lawyer second opinions, Lawyer second opinions ethics

05/26/2017 · 2:21 PM

Lawyer’s ethical duties and responsibilities when a represented person requests a second opinion

The opinion concludes:

South Carolina Bar Opinion 97-07 (1997) states:

Oregon State Bar Opinion 2005-81 (Revised 2014) states:

Bottom line: It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.

Be careful out there.

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

Filed under Attorney Ethics, Attorney/client confidentiality, Communication with clients, Confidentiality, Florida Bar, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer lack of competence, Lawyer second opinions, Lawyer second opinions and confidentiality, Lawyer second opinions and ethics, Lawyer second opinions and soliciation

Tagged as Attorney Ethics, attorney/client confidentiality, Bar ethics rules, client confidentiality, communication with client, confidentiality, corsmeier, joe corsmeier, joseph corsmeier, lawyer confidentiality, Lawyer second opinions ethics

05/11/2017 · 4:21 PM

ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 477, which was issued on May 11, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet. The Formal Opinion is here: ABA Formal Opinion 477.

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

The Formal Opinion states: “(i)n Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients. While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413. Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.”

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

Bottom line: This ABA opinion addresses the ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules of Professional Conduct and is for guidance only and is not binding; however, the analysis would be 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 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

Filed under ABA formal opinions, Attorney/client confidentiality, Confidentiality, Confidentiality and privilege, lawyer confidentiality, Lawyer ethical duties when sending confidential information over the internet, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Tagged as ABA opinion client confidentiality over the internet, Attorney Ethics, attorney/client privilege, client confidentiality, confidentiality, lawyer ethics

05/11/2017 · 4:13 PM

ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

Be careful out there.

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

Filed under ABA Formal Opinion- securing confidentiality over internet, ABA formal opinions, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer revealing client confidential information on internet, Lawyer technology competence

Tagged as ABA opinion confidentiality over internet, Attorney Ethics, attorney/client confidentiality, client confidentiality, confidentiality, corsmeier, joe corsmeier, joseph corsmeier, Lawyer ethics opinions

11/29/2016 · 10:04 PM

Arizona lawyer disbarred upon consent for disparaging book about his client Jodi Arias which violated client confidentiality

Hello everyone and welcome to this Ethics Alert which will discuss the recent disbarment of an Arizona lawyer who represented notorious murder defendant Jodi Arias and published a book with disparaging details about the representation and revealing attorney/client confidential information without the consent of the client. The case is In the Matter of Laurence K. Nurmi, Case No. PDJ-2016-9115.

The lawyer began representing Jodi Arias as an assistant public defender. She was charged in the lurid and violent murder of her boyfriend in Arizona in 2008 and was found guilty of first degree murder in May 2013; however, the jury was unable to reach a unanimous decision on whether to sentence her to death.

Another sentencing hearing was held in the fall of 2014 and that jury voted 11-1 to sentence Arias to death. The death penalty vote must be unanimous in Arizona and Arias was subsequently sentenced to life in prison in April 2015. She has appealed the verdict and sentence.

Sometime in 2015, the lawyer began writing a book detailing his representation of Arias without written/oral permission or authority from Arias to publish or disseminate any information related to the representation. According to the allegations, the book presents a negative view of Arias and the case. The lawyer’s self-published book, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial (Volume 1), was released in 2015.

The book includes multiple confidential discussions between the lawyer, Arias, and her family. The book also provides details of the case, makes disparaging remarks, and makes several statements regarding the substance of witness interviews and inadmissible exhibits. The lawyer also continued to disclose and explain certain facts and circumstances in the book related to his representation of Arias in promotional radio interviews.

In October 2016, the State Bar of Arizona filed a formal complaint against the lawyer for revealing attorney-client confidential information about Arias and her case in the book. The lawyer attempted to settle the case with a 4 year suspension; however, Jodi Arias objected to that sanction.

Immediately after the announcement of the consent agreement, the Maricopa County public defender, James Haas, objected to the Arizona Bar because the agreement did not specifically order the lawyer to stop violating ethical rules with regard to the Arias case, including revealing confidential information, since the book was listed as one of 3 volumes.

The lawyer filed a request for disbarment on November 14, 2016. The presiding disciplinary judge accepted the lawyer’s request on November 21, 2016 and issued an order making the disbarment effective the same day.

Bottom line: This lawyer chose to write a book in a highly publicized and lurid case which disparaged his client and revealed attorney/client confidential information, including conversations with her and her family and disparaging comments. Aria’s conviction is currently on appeal and it has been alleged that information in the book may jeopardize that appeal.

All lawyers should be aware that, unless the client provides informed consent, a lawyer is strictly prohibited from revealing attorney/client confidential information, even after the representation has been concluded.

Be careful out there.

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

5 Comments

Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Ethics and lawyer withdrawal, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer disbarment, Lawyer disbarment personal misconduct, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Tagged as Attorney Ethics, attorney/client confidentiality, Bar ethics rules, client confidentiality, confidentiality, corsmeier, joe corsmeier, joseph corsmeier, lawyer confidentiality, Lawyer disbarment, lawyer discipline

08/18/2016 · 5:42 PM

Lawyer-Client Confidentiality and Privilege: What is the Difference?

This Ethics Alert blog will discuss the terms lawyer-client confidentiality and lawyer-client privilege are often used interchangeably and the differences between them may become somewhat blurred. Although both terms address information related to the client that a lawyer cannot reveal and both are used primarily to protect the client’s ability to confide freely with the lawyer, they are not synonymous. There are several significant differences with regard to their scope, exceptions, and application.

The primary ethics rule addressing lawyer-client confidentiality in Florida Bar Rule 4-1.6, which is substantially similar to ABA Model Rule 1.6. The Comment states that “(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…” A violation of the Bar rule may result in disciplinary sanctions.

Absent an exception, confidential information remains confidential during the representation and after the client dies. The lawyer should not reveal confidential information if it will injure the client’s interests (absent an exception or legal compulsion), and it should only be disclosed to advance those interests.

A client may give informed consent for the lawyer to reveal confidential information or information that is protected by the privilege and consent may be implied under certain circumstances. The client must give consent to the waiver of confidentiality; however, the privilege may be inadvertently and impliedly waived by the failure to object to testimony about the privileged communications.

In contrast to privilege, the lawyer’s ethical duties regarding confidentiality are much more extensive in scope and application, particularly as to what information is protected. Confidentiality applies not only to information received from the client but all information related to the representation, regardless of whether the information came from the client or another source. In addition, confidentiality applies in all situations, not just in litigation.

The lawyer-client privilege is a litigation concept that arose from the principles of evidence. In Florida, the privilege is set forth in F.S. 90.502. The client, or someone acting legally for the client, may claim the privilege, typically through the lawyer. F.S. 90.502(e) states that a lawyer is presumed to have the authority to assert the privilege on behalf of the client. The privilege only protects communications between the client and lawyer in a litigation context, the communications are not protected if available from another source, and the communications are not necessarily protected simply because of the communication to the lawyer. The Comment to Bar Rule 4-1.6 states “(t)he attorney-client privilege and work-product doctrine apply in judicial and other proceedings…”

The “crime-fraud” exception to the privilege in F.S. 90.502(4)(a) permits the disclosure of information communicated to the lawyer if the client attempts to use the lawyer’s services to commit or cover up a crime or fraud.

Florida Bar Rule 4-1.6(b) requires disclosure of confidential information to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another. This mandatory exception is different from the crime-fraud exception to privilege in that it requires the threat of substantial injury or death to require that the information be revealed. There are other exceptions under Bar Rule 4-1.6(c) which permit (but do not require) disclosure by the lawyer.

Even if information is not covered by privilege, it may still be confidential. Depending on the circumstances, a lawyer may also be compelled to reveal the information regardless of whether it is privileged or confidential.

Bottom line: Although the use of the terms “lawyer-client confidentiality” and “lawyer-client privilege may often be used interchangeably, they are very different in concept, scope, and application.

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.

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

Clearwater, Florida 33761

Office (727) 799-1688

Fax (727) 799-1670

Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism

Tagged as Attorney Ethics, attorney/client privilege, Bar ethics rules, client confidentiality, confidentiality, corsmeier, Florida Bar, inadvertent disclosure of confidential documents, joe corsmeier, joseph corsmeier, lawyer confidentiality, statutory attorney/client privilege

07/20/2016 · 4:03 PM

N.J. Supreme Court reverses reprimand and dismisses complaint against lawyer who posted allegedly confidential information on his website

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New Jersey Supreme Court opinion reversing a Disciplinary Review Board’s reprimand recommendation and dismissing a complaint against lawyer who was alleged to have posted client confidential information on his website. The disciplinary case is In the Matter of Jay J. Chatarpaul, Docket No. 15-134 (July 15, 2016). The opinion is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1073877 and the Review Board’s Decision is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1068061

According to the Decision, the disciplinary complaint originated from a discrimination lawsuit filed by the lawyer against Rite Aid on behalf of his client Rameena Khan, which was ultimately settled. The settlement agreement stated:

Plaintiff’s Attorney agrees that as of the execution of this Agreement, it [sic] has removed: (a) any and all articles, blogs, or other writings that have been authored, posted, publicized or controlled by it [sic], which disparage or discuss the Lawsuit, Complaint, Federal Action, Amended Complaint, the Trial or the Appeal in any manner whatsoever, from the Internet and elsewhere, including but not limited to the articles attached hereto as Exhibit A; and (b) all hyperlinks and references to said articles from the Internet. In addition, [respondent] agrees not to write any further articles or blogs, or make any nonprivileged statements, regarding or referencing the Lawsuit, the Complaint, the Amended Complaint, the Federal Action, the Trial or the Appeal.

The lawyer had previously published an article on his website discussing, inter alia, the facts of the case and alleged errors made by the Superior Court Judge who presided over the case:

At trial, the case was assigned to Judge Christine Farrington. Judge Farrington was recently appointed as a judge of the Superior Court and took the bench in June 2010. Prior to being appointed judge, Judge Farrington spent 10 years as deputy counsel for the Port Authority of New York and New Jersey and worked in claims administration, risk management and environmental matters. During the trial, Judge Farrington made various prejudicial comments suggesting lack of impartiality, improperly excluding [sic] evidence and testimonies, etc., which are the subject of a pending appeal. Judge Farrington excluded various documents and testimonies, including documents and witnesses relating to the unemployment appeals hearing, documents and witnesses relating to Ms. Lazzaro [sic] termination and replacement, and other matters that are the subject of an appeal. The plaintiff’s position is that the jury’s verdict in favor of Rite Aid was the product of many errors of the trial judge, including various comments suggesting favoritism towards the position of Rite Aid. The plaintiff is confident that the appellate courts would [sic] grant a new trial based on these perceived errors.

The lawyer testified that although “in retrospect, he should not have made such statements about the judge and her rulings, respondent did not believe they were unethical. Still, he would not publish such an article again because he did not want to be the subject of another ethics investigation.”

The New Jersey Office of Attorney Ethics advised the lawyer to remove the article from his website because it allegedly contained client confidential information. The lawyer removed the article from his website; however, it was still visible through a Google search. The lawyer also argued that the information was public record and prohibiting him from publishing it would violate the First Amendment.

According to the Decision, “In respondent’s view, after the hyperlink had been removed from the law firm’s website, the article remained within the internet archives, but he did not know how to ‘get rid of that.'” The Special Master found that the lawyer’s representations that he had removed the article constituted “gross negligence” since the article was still accessible on the internet, that the article violated the New Jersey lawyer advertising rules, and that the failure to remove the article was prejudicial to the administration of justice since the lawyer “failed to take reasonable and necessary steps to make sure the Kahn [sic] Article was completely removed from the Internet (especially after Respondent received the OAE’s April 8, 2013 letter), and that his failure to do so has unnecessarily consumed resources of the State.”

In the New Jersey Disciplinary Review Board Decision, four members recommended a reprimand, one member voted for an admonition, and another member voted to dismiss the disciplinary matter. The majority found that the article violated client confidentiality and that the lawyer failed to preserve his website pages for 3 years under N.J. Bar Rule 7.2(b) (b) (A copy or recording of an advertisement or communication shall be kept for three years after its last dissemination along with a record of when and where it was used.” The Decision acknowledged that there was no precedent for applying the requirement to website pages.

The New Jersey Supreme rejected the Disciplinary Review Board’s reprimand recommendation and dismissed the complaint. The opinion found that “the respondent’s conduct in revealing information that was a matter of public record under the circumstances here did not violate (the client confidentiality rule)” and “there is a lack of precedent for applying RPC 7.2(b) to impose discipline on an attorney for failure to retain webpages of the attorney’s or a law firm’s website.” The opinion also recommended that the New Jersey advisory committee on professional ethics consider amending the rules to require lawyers to retain their webpages for a minimum period of time.

Bottom line: The factual and procedural circumstances underlying this opinion are convoluted; however, the lawyer argued that the article that he posted on his website contained public record and prohibiting him from publishing the information would be a violation First Amendment of the U.S. Constitution. The opinion found that revealing information that is a matter of public record does not violate the New Jersey client confidentiality rules.

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.

Please note: Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same.

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue. Please call (727) 286-6625 (my rollover number) if you need to contact me immediately. Thank you.

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