Category Archives: lawyer discipline for failure to respond to complaint

South Carolina Supreme Court prohibits another Florida lawyer from practicing law who solicited over the internet, made misrepresentations, and represented clients

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the South Carolina Supreme Court which prohibited another Florida lawyer who was not admitted in that state from admission to practice for soliciting over the internet and representing clients, making false statements, and failing to respond to the allegations, this time permanently. The opinion is: In the Matter of Alma C. Defillo, SC Case No. 27431 (August 13, 2014) and is at: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27431.pdf.

According to the opinion, formal disciplinary charges were filed against the lawyer, who was licensed to practice in Florida but not in South Carolina. The first count alleged that the lawyer opened an office in Greenville, South Carolina in 2012, “ostensibly to handle federal immigration matters. Respondent had no law partners or associates who were licensed in South Carolina except for a period of approximately fourteen days in August 2012. Respondent offered to provide legal services in South Carolina using methods specifically targeted at potential clients in South Carolina, including a law firm website, business cards, print advertisements, and radio commercials…”

“In connection with her representation of two clients in federal immigration matters, respondent sent letters to judges for the state circuit court in Greenville, requesting certification that the clients were crime victims. The letterhead contained the phrase “Attorneys and Counselors at Law” when, in fact, respondent had no partners or associates at the times the letters were written. Respondent’s letterhead included her Greenville office address without indicating the jurisdictional limitations on her ability to practice law.”

“Respondent advertised her law firm through the use of a website available to residents of South Carolina. Included on the website are references to respondent’s Greenville office. Respondent’s website contains material misrepresentations and omits facts necessary to make the contents considered as a whole not materially misleading. On her website, respondent advertises her office in Greenville but fails to state that she is not licensed to practice law in South Carolina or to otherwise set forth the jurisdictional limitations on her practice in this state. Further, respondent’s website is not limited to the promotion of her federal immigration practice as she advertises her experience in both criminal and family law and offers to ‘analyze the facts of [her prospective client’s] case by applying current…State Laws.’ In addition to false and misleading statements regarding offers to practice in this jurisdiction, respondent repeatedly refers to the firm’s “lawyers” and “attorneys” when, in fact, respondent is a sole practitioner with no partners, only sporadically employing associates in her law firm.

“Respondent’s website compares her services with other lawyers’ services in a way that cannot be factually substantiated by stating her law firm is ‘unique’ because she and her staff are fluent in Spanish and English. Additionally, respondent includes forms of the words ‘specialist’ and ‘expert’ on her website even though she is not a specialist certified by this Court. Respondent promotes her law firm by distributing printed business cards. The business cards advertise her office in Greenville without disclosing the fact that respondent is not licensed to practice law in South Carolina or disclosing the geographical limitation of her law practice in this state.

“Respondent promotes her law firm by publication of print advertisements in Spanish-language magazines and other periodicals distributed in South Carolina. Respondent’s print media advertisements lists her office in Greenville without disclosing the fact that she is not licensed to practice law in South Carolina or disclosing the jurisdictional limitations on her practice in this state. Respondent promotes her law firm by broadcasting commercials on Spanish-language radio stations in South Carolina. Respondent’s radio commercials include reference to her office in Greenville without disclosing the fact that she is not licensed in South Carolina or disclosing the geographical limitations of her practice.”

The second count stated: “Respondent initially cooperated with the disciplinary investigation by timely submitting her responses to the notice of investigation and ODC’s subpoena for her client files and record of advertising dissemination. However, respondent failed to submit a response to the supplemental notice of investigation served on her on April 5, 2013. As a result of her failure to submit a response to the supplemental notice of investigation, ODC issued a notice for respondent to appear for an interview on May 23, 2013. Respondent contacted ODC and requested the interview be postponed.

“Pursuant to that request, ODC issued an amended notice to appear, setting the interview for May 31, 2013. Respondent failed to appear, although her husband called ODC thirty-two minutes before the scheduled interview time to state respondent would not be attending the interview due to a court appearance in Georgia. Respondent’s husband was asked to instruct respondent to contact ODC after her court appearance in Georgia to reschedule the interview. As a result of respondent’s failure to contact ODC pursuant to this instruction, ODC issued a third notice to appear, setting the interview for July 2, 2013. Respondent did not appear on July 2, 2013, and has not contacted ODC with regard to this disciplinary matter since that time.

“Respondent made the following false or misleading statements in her response to the initial notice of investigation that she submitted to ODC: My practice is limited to Immigration Law. I have [not] portrayed myself to practice any other law but federal immigration law. At no time I have portrayed myself to represent residence [sic] of South Carolina with any legal services other than those that are exclusively related to immigration law. I solely practice federal immigration law.”

The SC disciplinary hearing panel found that the lawyer was subject to discipline pursuant to SC Bar Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct or other rules of this jurisdiction regarding professional conduct of lawyers) and Rule 7(a)(3) (it shall be ground for discipline for lawyer to willfully violate valid order of Commission or hearing panel, willfully fail to appear personally as directed, or knowingly fail to respond to lawful demand from disciplinary authority to include request for response or appearance) and that she violated SC disciplinary rules related to advertising, false statements and other rules.

The opinion stated that South Carolina has jurisdiction over all allegations that a “lawyer” has committed misconduct and that the term “lawyer” includes “a lawyer not admitted in this jurisdiction if the lawyer …offers to provide any legal services in this jurisdiction [and] anyone whose advertisement or solicitations are subject to Rule 418, SCACR Rule 2(q).” The opinion also states that the “authority to discipline lawyers and the manner in which the discipline is imposed is a matter within the Court’s discretion. In the Matter of Berger, 2014 WL 1386688 (2014); In the Matter of Van Son, 403 S.C. 170, 742 S.E.2d 660 (2013). The misconduct in this matter is similar to that in In the Matter of Van Son, id., where a lawyer who was not admitted in this state sent solicitation letters to at least two South Carolina residents and, thereafter, failed to cooperate with ODC’s investigation. In addition to other sanctions, the Court barred the lawyer from admission in this state and from advertising or soliciting clients in South Carolina for a period of five years.”

“In the current matter, not only did respondent target residents of South Carolina through various forms of advertising including radio communications and print media, but she also held herself out as licensed to practice law in this state, welcomed clients with criminal and family law concerns, and sent letters on behalf of clients addressed to state court judges. Further, when she did participate in the disciplinary investigation, respondent made false statements of material fact concerning the extent of her practice and the extent of her advertising in South Carolina to ODC. Since then, respondent has failed to cooperate in the disciplinary investigation and to appear for the hearing. (citation omitted.

“We find it appropriate to permanently debar respondent from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing her to seek admission. Further, we prohibit respondent from advertising or soliciting business in South Carolina without first obtaining an order from this Court allowing her to advertise or solicit business in this state. Before seeking an order from this Court to either allow her to seek admission or to advertise or solicit, respondent shall complete the South Carolina Bar’s Legal Ethics and Practice Program Ethics School and Advertising School. Respondent shall pay the costs of the investigation and prosecution of this matter by ODC and the Commission within thirty (30) days of the date of this order.”

Bottom line: For the second time this year (the first was Berger in April, which I blogged about here: https://jcorsmeier.wordpress.com/2014/04/11/south-carolina-supreme-court-bans-florida-lawyer-from-practicing-law-who-solicited-over-the-internet-and-represented-clients-in-that-state/, the South Carolina Supreme Court has “debarred” a Florida lawyer from practicing law in that state for targeting SC residents on the internet and other forms of advertising, false advertising, and false statements in the disciplinary investigation and violating SC Bar rules, this time permanently.

Let’s be careful out there!

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

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

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Nebraska Supreme Court imposes indefinite suspension on lawyer who contacted the criminal prosecutor after she was fired to “ensure the client’s conviction.”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Nebraska Supreme Court imposing an indefinite suspension on a lawyer who failed to respond to charges that she “disclos(ed) confidential information regarding criminal charges against a former client in order to ensure the client’s conviction.”  The opinion is State of Nebraska ex rel. Counsel for Discipline v. Donna J. Tonderum, SC-13-083, 286 Neb. 942 (November 22, 2013).  The disciplinary opinion is at: http://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-083.pdf

According to the opinion, the lawyer was retained to defend a client charged with criminal first degree sexual assault.  The client and his family subsequently hired another attorney and terminated her representation.  The lawyer then contacted the criminal prosecutor to discuss the case also “stated that she no longer represented her former client because he had rejected her advice and hired the other attorney.  (She) stated that she “hated” the other attorney, that she knew her former client was guilty, and that she wanted to make sure the prosecutor sent (her) former client to prison.

The lawyer gave the prosecutor the names of witnesses related to the former client’s case, stated what their testimony would be, provided contact information for some witnesses, and informed the prosecutor of the expected the defense strategy.  Not surprisingly, the criminal prosecutor called disciplinary counsel and advised the new lawyer for the defendant.

The opinion states that, “(the lawyer’s) failure to respond to the formal charges filed by (disciplinary counsel) is also troublesome. We consider an attorney’s fail­ure to respond to inquiries and requests for information from (disciplinary counsel)  as an important matter and as a threat to the credibility of attorney disciplinary proceedings.  As noted, (the lawyer’s) failure to file an answer to the formal charges leaves us with­out any record of mitigating factors, other than her previous record of no violations, and no way to assess her fitness to practice law.

The court declined to disbar the attorney, notwithstanding her failure to respond to the charges.  “(U)nder the facts of this case, we conclude that an indefinite suspen­sion, with a minimum suspension of 3 years, is the appropri­ate discipline.

Bottom line:  This case is bizarre, to say the least. According to the disciplinary Complaint (which the lawyer did not respond to or rebut), the lawyer was fired from representing the client in the criminal case and, since she was fired and “hated” the successor lawyer, she was willing to breach her client’s confidences in order to “make sure” the former client went to prison.  It is also surprising that the court did not disbar the lawyer, especially in light of her failure to respond to the disciplinary charges.

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

www.jac-law.com

 

 

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Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, Confidentiality and privilege, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer discipline, lawyer discipline for failure to respond to complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Ohio lawyer reprimanded for filing defamation action against wrong party without conducting investigation, failing to amend, and failing to respond to Bar complaint

Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Ohio opinion reprimanding a lawyer for filing a defamation action against the wrong party without conducting an investigation, refusing to amend when advised of the error, and failing to respond to the subsequent Bar complaint.  The opinion is Ohio Disciplinary Counsel v. Lehmkuhl, Slip Opinion No. 2013-Ohio-4539 (October 16, 2013).  The disciplinary opinion is here: http://www.sconet.state.oh.us/ROD/docs/pdf/0/2013/2013-Ohio-4539.pdf

According to the opinion, the lawyer filed a defamation complaint in 2009 on behalf of himself, his wife, and Arlene and Timothy J. McAfee alleging that the named defendants, Joseph and Amanda Erb, and alleged that they were a married couple.  The complaint stated that they had been interviewed by a local television news crew about the purported treatment of horses owned by the lawyer and pastured by the McAfees and had made numerous false accusations against the plaintiffs with careless disregard as to whether the statements were true, with the intent to defame the plaintiffs.

The answer and counterclaim admitted that Joseph had spoken with the news crew and expressed his opinions regarding the treatment of the lawyer’s horses; however, Amanda was Joseph’s daughter, not his wife, and she had no involvement in the incident.  In their motions for summary judgment and for sanctions they again stated that Amanda was not a proper party.  According to the opinion, “Despite having been advised as early as January 2010 that he had erroneously named Erb’s daughter as a defendant in the defamation action, (the lawyer) waited until May 4, 2010, to dismiss the claims against her and did not seek leave to amend his complaint until May 6, 2010.”

On March 23, 2010, Joseph Erb filed a Bar grievance against the lawyer; however, the Bar dismissed it in May 2010 and advised him that he could file it again at the conclusion of the underlying litigation. “During settlement negotiations in the defamation case, (the lawyer) attempted to condition the dismissal of his civil case on the Erbs’ agreement to abandon their grievance against him. After he was advised that such a condition would violate ethical rules, however, he settled the case without any limitations on the Erbs’ right to pursue their disciplinary grievance.  Mr. Erb refiled his grievance in April 2011.” 

The lawyer requested an extension of time to file a response; however, he never provided any response. “Two days after the lawyer’s father-in-law died, (Bar counsel) sent a second letter by certified mail requiring a response.  Though he received the letter, he did not respond due to the family turmoil surrounding his father-in-law’s death. He also failed to appear for a deposition in (the Bar’s) office after being personally served a subpoena duces tecum because the date did not get placed on his calendar.”

The opinion accepted the stipulation between the parties and imposed a public reprimand on the lawyer “for initiating a defamation action without adequately investigating the identity of the proper defendants, failing to timely amend his complaint when he learned that he had misidentified one of the defendants, and failing to cooperate in the ensuing disciplinary investigation.

Bottom line: This lawyer has hopefully learned a few lessons from his unfortunate experience:  1) lawyers must conduct an adequate investigation before filing a lawsuit, particularly a defamation lawsuit, 2) lawyers are not permitted to condition the settlement of a lawsuit on the withdrawal of a lawsuit, and 3) lawyers should always respond to a Bar complaint.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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