Category Archives: Lawyer conflict of interest

Lawyer ethics and positional conflicts of interest

Hello everyone and welcome to this Ethics Alert which will discuss lawyer ethics and positional conflicts.   Although this may not be common in a typical lawyer’s practice, all lawyers should be aware of the potential ethical issues which may arise from taking opposing legal positions on behalf of 2 or more clients.

ABA Formal Opinion 93-377

ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 93-377- Positional Conflicts (issued in 1993) reviewed ethical issues when a lawyer represents one client in a matter in which the client’s interests regarding a substantive legal issue are directly adverse to a position the lawyer (or law firm) is advocating on behalf of another client on the same or similar issue.  Formal Opinion 93-377 is attached.

The opinion states that “…(a)rguing a position on behalf of one client that is adverse to a position that the lawyer, or her firm, is arguing on behalf of another current client raises a number of concerns. For example, if both cases are being argued in the same court, will the impact of the lawyer’s advocacy be diluted in the eyes of the judge(s)?  Will the first decision rendered be persuasive (or even binding) precedent with respect to the other case, thus impairing the lawyer’s effectiveness–and, if so, can the lawyer (or firm) avoid favoring one client over the other in the ‘race’ to be first? And will one or the other of the clients become concerned that the law firm it has employed may have divided loyalties?”

The opinion also reviewed the 1993 Model Rule 1.7 Conflict of Interest: General Rule as it existed before the ABA Ethics 2000 Commission recommended revisions to the Model Rules.  The opinion refers to paragraph (9) of the Comment to Rule 1.7 which stated as follows:

“A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.”

The opinion noted that representing two clients in different trial courts while advocating opposing sides of the same issue could also be a conflict of interest under Rule 1.7 just as if both matters were pending in the same appeals court.  A decision in a trial court could influence the outcome of a second matter in another trial court, and a decision in an appeals court could have an adverse effect on a matter pending in a trial court matter.

With regard to matters pending in the same jurisdiction, the opinion stated:

“The Committee is therefore of the opinion that if the two matters are being litigated in the same jurisdiction, and there is a substantial risk that the law firm’s representation of one client will create a legal precedent, even if not binding, which is likely materially to undercut the legal position being urged on behalf of the other client, the lawyer should either refuse to accept the second representation or (if otherwise permissible) withdraw from the first, unless both clients consent after full disclosure of the potential ramifications of the lawyer continuing to handle both matters.” (footnote omitted).

If the matters are not being litigated in the same jurisdiction, the opinion provides several questions a lawyer should consider, including the relative importance of the positional conflict issue and the likelihood that it may affect the outcome of one or both of the cases, the extent to which a decision in one case might influence the decision in the other and the extent to which the lawyer ‘s independent professional judgment may be affected if he or she changes advocacy or tactics in one case to minimize any adverse effects on the client in the other case.

The ABA Ethics 2000 Commission deleted paragraph (9) to the comments to Rule 1.7, and replaced it with current paragraph (24) which states:

“Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case…Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.”

The Restatement of the Law Governing Lawyers also considered this issue and, in comment f §128 (2000), states that a lawyer “ordinarily may take inconsistent legal positions in different courts at different times”; however, “a conflict is presented when there is a substantial risk that a lawyer’s action in (one matter) will materially and adversely affect another client in (a second matter).”

Florida Bar Rules 

The Florida Bar has not issued an ethics opinion addressing positional conflicts; however, the Comment to Florida Bar Rule 4-1.7 is identical to the 1993 paragraph 9 of the Comment to Model Rule 1.7 and states as follows:

Conflicts in litigation 

A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.

State Bar Rules and Ethics Opinions 

Some state ethics opinions have considered this issue.

Oregon Ethics Opinion 2007-177 (2007) states that a lawyer may not represent a client in a matter requiring the lawyer to contend for something that he or she must contend against on behalf of another client in another matter if the outcome of one matter is highly likely to affect the outcome of the other.  The ethics opinion is here:  https://www.osbar.org/_docs/ethics/2007-177.pdf

Maine Ethics Opinion 155 (1997) – Arguing Different Sides of Same Legal Issue in Unrelated Cases addresses that state’s conflicts of interest rules in its analysis.  The ethics opinion is here:  http://www.mebaroverseers.org/attorney_services/opinion.html?id=89688

“…Although we conclude that an “issue conflict” standing alone is not a conflict within the meaning of Bar Rule 3.4(b), we note that counsel has an obligation to both clients under Rule 3.6(a)(1) to employ “reasonable care and skill” and to “employ the lawyer’s best judgment” in the representation of her clients. In light of this rule, an attorney must be mindful of the possibility that contemporaneously arguing opposite sides of the same issue before the same judge or panel of judges could impair her effectiveness on behalf of both clients, thereby arguably violating Rule 3.6(a)(1). It is not possible to define all the circumstances in which this rule might be implicated, since it will depend on the particular facts and circumstances.”

The Maine Rules of Professional Conduct were revised in 2009 and that state’s version Comment to Rule 1.7 is now similar to ABA paragraph 24.

District of Columbia Ethics Opinion 265 (1996) states:  “When a lawyer is asked to represent an entity that takes positions on matters of law in a subject area in which the lawyer practices regularly on behalf of other clients, the lawyer may not, without the informed consent of all affected parties, accept simultaneous representation of both clients where such representation creates a substantial risk that representation of one client will adversely affect the representation of the other.” The ethics opinion is here:  https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion265.cfm

Bottom line:  If the lawyer is considering taking a position for one client which is directly adverse to a position the lawyer (or law firm) is taking for another client on the same or similar issue, the lawyer must consider the potential conflict of interest and act accordingly.

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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Kansas lawyer suspended indefinitely for, inter alia, engaging in a sexual relationship with the president of a corporation she represented

Hello everyone and welcome to this Ethics Alert which will discuss the recent Kansas Supreme Court opinion suspending a lawyer for engaging in a sexual relationship with the president of a corporation that she represented as general counsel, drafting an employment contract for the person, and failing to report the person’s misconduct.  The opinion is In re Allison L. Bergman, No. 115,448 (Oct. 28, 2016) and the Kansas Supreme Court opinion is here: http://www.kscourts.org/Cases-and-Opinions/Opinions/SupCt/2016/20161028/115448.pdf.

According to the opinion, the lawyer served as outside general counsel for the Kansas City Terminal Railway Company.  During her representation of the company, she began a sexual relationship with the company’s president and board chair (Mader). “From 2002 until January 2012, Respondent and Mader were in a personal, close relationship.  At times the relationship was romantic and sexual. At all times from 2002 to January 2012, the relationship between Mader and Respondent was a very close, deep, meaningful, sustained, loving, caring, intimate and special friendship with frequent social and personal interactions with each other.”

The lawyer failed to disclose the relationship to the corporation’s board.  She later drafted the president’s employment contract and, in addition, the lawyer failed to report to the board the president’s breach of various fiduciary duties that he owed to the corporation.

The opinion states that the Kansas Rules of Professional Conduct, like the ABA Model Rules (and most state Bar Rules), prohibit a lawyer from having “sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

“We agree with the hearing panel that probation is not an appropriate disposition.  As the panel concluded, the respondent’s misconduct is serious, involving significant conflicts of interest as well as dishonest behavior. Further, the panel found respondent failed to take full responsibility for her actions, and the record supports that finding. We, therefore, conclude it would not be in the best interests of the citizens of the state of Kansas for the respondent to be placed on probation. We agree with the panel’s recommendation that the respondent’s license to practice law in the state of Kansas be suspended for an indefinite period of time.”

Bottom line:  This case raises interesting questions regarding the scope and application of Bar Rules which prohibit a lawyer from engaging in a sexual relationship with a client under unless the relationship commenced before the representation began.  The Bar Rules in most (if not all) jurisdictions state that when a lawyer is hired by a corporation, the “client” is the corporation, not the president or other board members and directors.  This raises the question of whether the lawyer can be found guilty of violating the Bar Rule prohibiting sex with a client if he or she did not actually have sex with the “client” corporation but admitted to having sex with the president?  I would think not…and I would urge lawyers not to test the application of the rule!

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, Lawyer conflict of interest, Lawyer discipline, Lawyer discipline alleged sexual misconduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sex with client

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

Louisiana Supreme Court concludes that “of counsel” lawyers are associated with that law firm for conflicts of interest analysis

Hello everyone and happy 2015 to you and yours! This first Ethics Alert of the new year will discuss the recent Louisiana Supreme Court which concluded that “of counsel” lawyers are associated with that law firm for purposes of potential conflicts of interest analysis. The case is In re Randy J. Fuerst, No. 2014-B-0647 (La. SC 12/9/14). The Court’s opinion is here: https://www.ladb.org/DR/?

According to general practice in the United States, a law firm can identify one or more lawyers as having an “of counsel” relationship with the firm. ABA Formal Op. 90-357 (May 10, 1990) states that, although the application of the term is varied, the “core characteristic (of the) title ‘counsel’ is, as stated in Formal Opinion 330, a ‘close, regular, personal relationship’; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term “associate,” which is to say a junior non- partner lawyer, regularly employed by the firm.

The ABA opinion notes that there is no prohibition against a law firm being “of counsel” to another law firm; however, “of counsel” relationships do not include the following: 1) “a relationship involving only an individual case,” 2) a relationship of “forwarder or receiver of legal business,” 3) a relationship “involving only occasional collaborative efforts among otherwise unrelated lawyers or firms,” or 4) a relationship as “an outside consultant.” ABA Formal Opinion 90-357 is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_90_357.authcheckdam.pdf

In the recent Louisiana Supreme Court opinion, the lawyer was found guilty of violating the Louisiana Bar Rules by engaging in a sexual relationship with a current client and he was also found to have engaged in a conflict of interest in violation of Louisiana Bar Rule 1.10 “by referring a (current divorce) client to another lawyer in the law firm with which he was associated as ‘Of Counsel.’” The opinion found that “(a) lawyer who is ‘Of Counsel’ to a law firm is considered to be a member of the firm for purposes of analyzing imputed disqualification questions”; therefore, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”

Bottom line: According to this Louisiana disciplinary opinion, a lawyer who is “of counsel” to a law firm is considered to be a member of that law firm for purposes of conflict of interest analysis; therefore, a lawyer who has a conflict of interest and must withdraw from representing a client cannot refer that client to a law firm in which he has an “of counsel” relationship since this conflict is imputed to the law firm and all of its lawyers. In addition, in this case, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”

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.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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Filed under ABA formal opinions, Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer conflict of interest, Lawyer discipline, Lawyer discipline alleged sexual misconduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer sanctions

U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

Hello everyone and welcome to this Ethics Alert which will discuss the recent Washington Post article which states that the Justice Department has prohibited U.S. Attorneys from requiring waivers of ineffective assistance of counsel in exchange for a plea. The Post article is here: http://www.washingtonpost.com/world/national-security/doj-to-amend-competent-counsel-waiver-practices-as-holder-prepares-to-step-down/2014/10/14/465efbde-53ba-11e4-809b-8cc0a295c773_story.html?hpid=z3

According to the Washington Post article, the Justice Department said on October 14, 2014 that, effective on that date, federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

“A memo by (Deputy Attorney General James M.) Cole directs federal prosecutors to no longer require criminal defendants to waive their future claims of ineffective assistance of counsel in plea agreements. It also instructs federal prosecutors to stop enforcing waivers that have already been signed in cases where defense counsel provided ineffective assistance that resulted in prejudice or where the defendant’s claim raises a serious issue that a court should resolve.” The Post article states that some U.S. attorney’s offices no longer require defendants to waive their right to make future claims about the effectiveness of their counsel; however, before the new policy was announced, 35 of the Justice Department’s 94 U.S. attorney’s offices still permitted the waiver requirement.

Bottom line: As I discussed in my 12/13/12 Ethics Alert blog, which is here: https://jcorsmeier.wordpress.com/2012/12/13/florida-bars-board-of-governors-approves-advisory-opinions-related-to-waivers-of-ineffective-assistance-and-prosecutorial-misconduct-and-permitting-lawyers-to-authorize-non-lawyers-to-use-e-portal-c/, Florida Bar Ethics Advisory Opinion 12-1 opines that it was unethical for criminal prosecutors to request such ineffective assistance waivers and for criminal defense lawyers to accept them. The opinion also states that it was unethical for prosecutors to request, and defense lawyers to agree to waivers of prosecutorial misconduct. This new DOJ policy now prohibits all federal criminal prosecutors from requiring such a waiver as part of a criminal plea.

Let’s be careful out there.

Disclaimer: this e-mail 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
http://www.jac-law.com

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Filed under Ethics of criminal plea waivers, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conflict of interest, Lawyer ethics, Lawyer Ethics and Professionalism, Prosecutorial misconduct ethics

Florida Supreme Court disbars lawyer for, inter alia, making agreement with defendant for payment to make the case “go away” while representing victim

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent the Florida Supreme Court Order which upheld a referee’s report and disbarred a Florida lawyer for, inter alia, making an agreement with a defendant in a criminal matter for payment to make the criminal case “go away” while representing the victim in the same case. The Order is: The Florida Bar v. Mark F. Germain, SC12-1981 and SC12-2289 (July 8, 2014) and is here: http://www.floridasupremecourt.org/clerk/dispositions/2014/07/12-1981_12-2289.pdf.

According to the referee’s report, which was adopted by the Florida Supreme Court, Jeffrey Bowman was arrested in Lake County, Florida on or about July 1, 2011, following an alleged domestic battery on Bonnie DePaolo. Bowman was later released and ordered to have no contact with DePaolo as a condition of his pretrial release. An Assistant State Attorney met DePaolo on the day of Bowman’s bond hearing and she said that she was very upset that Bowman was bonding out of jail.

According to testimony by the lawyer, Bowman was the subject of a 2007 injunction regarding DePaolo and she also went to the hospital after the incident for the injuries Bowman allegedly caused. DePaolo’s sister, Rita Hazlett, testified that, while DePaolo was staying with, a Sheriff’s deputy came to her house to warn her that Bowman had threatened to kill her and that he came into her yard, angry and waving a gun.

In early July 2011, the lawyer agreed to represent DePaolo, the victim in the matter. The lawyer then called the defendant, Bowman, and requested a meeting at a restaurant in order to make it “all go away.” Bowman testified that they discussed getting his belongings back and dropping the prosecution for “cash.” Bowman did not agree to this, and the settlement was not finalized.

The lawyer then called attorney John Bruce Bowman, the brother of Bowman, and suggested to him that Bowman pay a “substantial” amount of money to avoid prosecution. Attorney Bowman told him that the suggestion was extortion and he would not be a part of it. Attorney Bowman later reviewed a settlement agreement that was negotiated between Bowman and the lawyer. He also stated that the lawyer never discussed a civil settlement or claim and that the telephone call was about “saving money with a criminal lawyer and getting money to resolve a criminal matter.”

The lawyer testified that the content of the proposed settlement agreement was in an e-mail he sent to Jeffrey Bowman and attorney Bowman; however, attorney Bowman apparently never received a copy of any e-mail because of a “faulty e-mail address”. The lawyer also did not have DePaolo’s medical bills at the time of the agreement, which later exceeded $3,000.00.

The lawyer tried to resolve the criminal case before a July 14, 2011 meeting between the Assistant State Attorney and DePaolo so that Bowman would not have to “spend money” on a criminal defense attorney. The lawyer testified that he was aware of the Bar rules prohibiting compensating people to drop criminal charges and that he did not call the Florida Bar Hotline during the preparation of the agreement.

The lawyer then prepared a settlement agreement in which DePaolo would sign an Intent Not to Prosecute and “in good faith make every effort to ensure that there is no prosecution.” The agreement also contained the following statement: “I, attorney Mark F. Germain, hereby acknowledge receipt of $1,500 from Jeffrey ALLEN BOWMAN on behalf of BONNIE DEPAOLO as compensation for the concessions made herein.” (emphasis supplied). The agreement was signed July 10, 2011, by both the lawyer and DePaolo; however, the lawyer never received the $1,500.00 from Jeffrey Bowman.

Soon after the agreement was signed, the lawyer called attorney James Hope, who was his supervising attorney for probation imposed in a previous Bar matter, regarding the agreement. “Mr. Hope dissuaded (the lawyer) from using the language in paragraph three, but (the lawyer) continued to press as to why he thought the language was appropriate. Mr. Hope told (the lawyer), ‘I wouldn’t touch that with a ten foot pole.’ (The lawyer) then admitted that the agreement was not a proposal, and that he had already signed it.”

The referee found that the lawyer did not competently in representing DePaolo, including the failure to obtain an injunction, which would have “greater enforceability and consequences for violation than a ‘no contact’ order from first appearance (an order prohibiting contact with Ms. DePaolo as a condition of pretrial release). He also waived her ability to seek personal injury damages, without knowing what those damages were, and then encouraged settlement for a sum of money far below the actual costs she incurred for medical treatment.”

The referee also found “(the lawyer) also discouraged the criminal prosecution of the ‘perpetrator’ in this case, which prosecution may have resulted in further protections and restitution for Ms. DePaolo. He attempted to negotiate a settlement which was beneficial to Jeffrey Bowman and detrimental to Bonnie DePaolo, and he attempted to extort funds from Jeffrey Bowman in exchange for a declination of prosecution. In addition to the harm this caused to Ms. DePaolo, Respondent ultimately interfered with the State’s prosecution of Jeffrey Bowman by negotiating terms encouraging Ms. DePaolo’s non-participation as a witness in the case.”

The referee also found that “(the lawyer) was misleading during the Bar’s investigation of this matter. For example, he prepared two affidavits for Ms. DePaolo, which were at best self-serving testimony, and were not accurate. During the hearing, Ms. DePaolo could not even read portions of the Affidavits, and it was clear that the contents were not her testimony. These affidavits were prepared at critical points in the disciplinary process. (The lawyer) also gave deposition testimony that was not accurate.”

After listing the Bar Rules that the lawyer violated, including 4-1.1, 4-1.7(a)(2), 4-3.4(b), 4-8.4(a), and 4-8.4(d), applying the Florida Standards for Imposing Lawyer Sanctions, mitigation and aggravation, and case law, the referee recommended that the lawyer be held in contempt of his probation and permanently disbarred. In a one page Order, the Florida Supreme Court upheld the referee’s findings and found the lawyer in contempt; however, the Court reduced the permanent disbarment to a 5 year disbarment.

Bottom line: This is a somewhat bizarre set of facts to say the least and, according to the referee’s report, the lawyer apparently knew that what he was doing was a violation of the Bar rules. He will now have 5 plus years to think about it.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog 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
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New York lawyer suspended for, inter alia, agreeing to assist a client in a malpractice claim against his own law firm

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York disciplinary opinion which imposed a one (1) year suspension on a lawyer who, along with other misconduct, entered into an agreement with a client to assist in a malpractice action against his own law firm. The opinion is Matter of Novins, 2014 NY Slip Op 03465 (NY Appellate First Division 5/13/14) and the disciplinary opinion is here: http://www.nycourts.gov/reporter/3dseries/2014/2014_03465.htm

According to the opinion, the lawyer was hired by a New York law firm in 2006 and was assigned to work on a personal injury action filed in 1994 against the City of New York and an off duty New York City police officer on behalf of another off duty New York City police officer (the client), who had been shot and wounded in a bar by that off-duty police officer. Although the lawyer’s firm served the City with a summons and complaint, it never served the defendant police officer. In 2007, the City was granted summary judgment in the personal injury action on the ground that it had not negligently supervised the shooting police officer because it did not have notice of his dangerous propensities. The summary judgment was affirmed in 2008.

In January 2008, while the motion for leave to appeal was pending, the lawyer and the client met in a restaurant and signed a “Personal Services Agreement” under which the client agreed to “give” the lawyer 45% of any net recovery he received related to the shooting incident. This agreement included the personal injury action and a legal malpractice claim against the lawyer’s firm for “negligently failing to timely serve the defendant police officer, for neglecting to work on (the) case over the many years, for failing to take the deposition of the defendant police officer, for having failed to obtain a copy of the defendant police officer’s Personnel File in a timely manner and for failing to bring a Motion … for spoliation of this key evidence.” The agreement was drafted by the lawyer; however, it did not specifically state what services that the lawyer would provide. The lawyer acknowledged during the disciplinary proceedings that he agreed to serve as a witness for the client in the malpractice action against his employer.

During the disciplinary proceedings, the lawyer stated that the client brought up the subject of additional compensation and that the 45% fee was to compensate him for his extraordinary efforts in the personal injury action and for his willingness to assist the client in pursuing the malpractice claim, which would require him to leave his law firm (the putative legal malpractice defendant). The client denied this and stated that the lawyer produced the agreement at the meeting and asked him to sign it, telling him that he had notes and documents that would prove the legal malpractice claim. The lawyer provided the client with a list of legal malpractice attorneys and concealed the agreement from his law firm.

In May 2008 (while the lawyer was still employed with the law firm), a malpractice action was filed against the lawyer’s firm and principals and “(b)etween February and March 2009, (the lawyer) left a series of voice-mail messages for (the client) asking him to call him back. On April 28, 2009, (the lawyer) left (the client) a message in which he referred to risking his neck by putting certain notes back into the personal injury action file which (the client) would need for the malpractice action. In May 2009, respondent left a message stating that he would be leaving the (law) firm in 30 days and would be able to prove the malpractice and coverup.”

On May 28, 2009, the lawyer left a message with the client complaining that he had called him about 30 times but received only one call back. The lawyer falsely stated that he had left his law firm and said that he considered the agreement to be in full force and effect. He also threatened to throw away all the evidence in his possession unless the client called him back. Ten minutes later, the lawyer left another message stating he would take appropriate action to enforce the agreement as soon as he left his firm. The lawyer admitted during the disciplinary proceedings that the purpose of the calls was to compel the client to honor the agreement or at least renegotiate its terms so that he could have a financial recovery for the malpractice claim.

In April or May 2010, during the course of discovery, the lawyer’s law firm learned of the secret agreement with the client, but did not fire the lawyer. On or about August 17, 2010, the law firm learned of the messages that the lawyer left on the client’s voice mail and the lawyer was deposed in the malpractice action on August 20, 2010 and retracted his allegations of malpractice against the law firm.
The client filed a disciplinary complaint against the lawyer on August 26, 2010. The law firm fired the lawyer on August 31, 2010 and filed a disciplinary complaint against him on September 7, 2010. In 2012, the New York Disciplinary Committee brought six charges against the lawyer and a disciplinary panel conducted evidentiary proceedings.

The disciplinary panel found that the lawyer charged an excessive and unreasonable fee, engaged in conduct which reflected adversely on his fitness as a lawyer, acquiesced to the payment of compensation to himself as a witness which testimony was contingent on the outcome of a case, violated his duty of loyalty to both the client and his law firm by attempting to charge a client for information that both he and the firm were ethically obligated to provide and by concealing the agreement from his employer, and threatening to destroy evidence that was apparently essential to the client’s malpractice claim. The panel recommend that the lawyer be suspended from practice for one (1) year.

After considering mitigating and aggravating factors and relevant case law, the opinion granted the Disciplinary Committee’s Motion to approve the hearing panel’s recommendation that the lawyer be found guilty of all counts and suspended him from the practice of law for one (1) year.
Bottom line: This opinion tells a quite sordid tale of duplicity, false statements, disloyalty, attempted coercion, and greed as well as just plain dumb actions by a lawyer who was unbelievably disloyal to both his law firm and to a client. Sometimes you think you have seen it all…

Let’s be careful out there.

Disclaimer: this Ethics Alert blog 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
http://www.jac-law.com

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