Category Archives: Lawyer discipline sanctions for failure to appear at hearing

Virginia lawyer previously suspended after disrupting CLE seminar suspended for 5 years on new candor violations

Hello everyone and welcome to this Ethics Alert which will discuss the recent 5 year suspension of a Virginia lawyer who was previously suspended for 6 months in 2015 for disrupting a CLE seminar and suspended for 3 years in 2016 when he failed to undergo treatment required pursuant to the 2015 suspension.  The 6 month suspension Order dated March 27, 2015 is here: http://www.vsb.org/docs/Hartke-050615.pdf and the 3 year suspension Order dated October 27, 2016 is here: http://www.vsb.org/docs/Hartke-110416.pdf.

According to the Virginia State Bar website, “on August 25, 2017, the Virginia State Bar Disciplinary Board suspended Wayne Richard Hartke’s license to practice law for five years effective October 27, 2019, for violating professional rules that govern candor toward the tribunal.  The suspension will be consecutive to a three-year suspension issued on October 27, 2016.”

According to the March 27, 2015 Disciplinary Board Order, the lawyer was intoxicated and disruptive at a Continuing Legal Education program.  Witnesses at the CLE seminar said that the lawyer was sleeping and loudly snoring during the morning session and then yelling at the video screen during the afternoon session.  A witness also said he smelled of alcohol and had a bottle of liquor with him at the seminar.  The lawyer was led from the seminar room by another person attending the seminar.

The lawyer was suspended for six months for that CLE disruption and for “failing to correct misrepresentations that he made to the Virginia State Bar during the disciplinary proceedings”.  The Order also required him to enroll in a two-year treatment and monitoring program stated that any notice of noncompliance would result in an order to show why his license should not be suspended for an additional three years.  According to the October 27, 2016 disciplinary Order, the lawyer failed to comply with the terms of the 2015 Order.  He also failed to show up for the disciplinary hearing.  The Disciplinary Board found that the violation was proven and suspended the lawyer for three (3) years, effective October 27, 2016.

The lawyer had previously been reprimanded in 2010 after settling a legal malpractice lawsuit which alleged that he failed to protect the interests of the members of the board of directors of a corporate client.  He was reprimanded again in 2011 when he was held in contempt and served 10-day jail sentence after his blood alcohol content was found to be .127 during a court appearance.

Bottom line:  According to the facts set forth in the disciplinary Orders, this lawyer has some serious and ongoing issues with both alcohol and candor.  The ultimate result was a 5 year suspension effective October 27, 2019 after he completes his current 3 year suspension and, unless that suspension is modified, it will continue until October 27, 2024.

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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Florida Supreme Court rejects referee’s recommendation of public reprimand and suspends lawyer for 10 days for failing to appear at hearing

Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court disciplinary opinion which rejected a referee’s recommendation of a public reprimand and suspended a lawyer for 10 days for failing to appear at a hearing. The disciplinary opinion is The Florida Bar v. Daniel Mark Cohen, No. SC12-2724 (February 12, 2015) and the disciplinary opinion is online here: http://www.floridasupremecourt.org/decisions/2015/sc12-2724.pdf

According to the opinion, the lawyer was retained to represent a client at a resentencing hearing in the client’s resentencing in a criminal case. On March 15, 2012, a Notice of Hearing was mailed to the lawyer stating that the resentencing hearing was scheduled for March 28, 2012. The lawyer received the Notice on March 19, 2012. The lawyer filed a “Motion to Continue Resentencing Hearing and Notice of Unavailability” on March 19, 2012 which stated that the notice provided for the resentencing hearing was not reasonable and that he did not have adequate time to prepare.

The motion also stated that the lawyer was unavailable on March 28, 2012 since he had previously been retained to prepare a petition for writ of certiorari on behalf of another client. The motion did not state whether the prosecutor had agreed to the continuance. A copy of the motion was submitted directly to the presiding judge and the motion was not scheduled for a hearing.
The hearing was not continued and, on, the day the hearing was scheduled, the judge traveled from the county where he was then assigned to the county where the hearing was to take place. The judge had also reserved a courtroom and scheduled court staff in order to conduct the hearing. The prosecutor, the client, and the client’s former appellate attorney appeared for the hearing; however, the lawyer did not appear and the judge rescheduled the hearing for a later date.

The presiding judge in the criminal case testified at the Bar hearing that if the lawyer had appeared at the hearing and requested a continuance, he would likely have granted it and the prosecutor also testified that she would have had no objection to the request for a continuance. The referee found that the lawyer had substantial experience in the practice of law and specifically in the practice of criminal law, and the he should have known that the motion to continue would not automatically be granted. Further, the resentencing hearing was properly noticed and had not been continued; therefore, the lawyer was required to appear. The presiding judge also stated that the lawyer made no personal effort to contact the presiding judge to explain his absence after the hearing date and the judge then reported the matter to The Florida Bar.

The referee recommended that the lawyer be found guilty of violating Florida Bar Rules: 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). The referee also found five mitigating factors: no prior discipline; personal or emotional problems; cooperative attitude during the disciplinary proceeding; good character and reputation; and remorse. The referee found two aggravating factors: substantial experience in the practice of law and refusal to acknowledge the wrongful nature of his misconduct.

The referee also found that the lawyer’s conduct caused harm to the legal system: “While minimal direct prejudice, harm or injury resulted to (the client), the Respondent’s actions ultimately required (the client’s) resentencing hearing to have to be postponed. The delay to the court system was proven and evident. Continuing court hearings and having litigants come to court without being able to resolve the issues result in undue hardship to the administration of justice. This also results in additional expense and unnecessary use of work hours and administrative functions, such as the transportation of inmates (in this case [the client] was an inmate and had to be transported for the hearing). Thus, the Respondent’s ethical misconduct is harmful to the legal system and cannot be tolerated by an officer of the court.”

As to discipline, the referee recommended that the lawyer receive a public reprimand before The Florida Bar Board of Governors, that he obtain an evaluation by Florida Lawyer’s Assistance, Inc. (FLA) and abide by all of FLA’s recommendations, including a contract if necessary, schedule a review by the Law Office Management Assistance Service (LOMAS), and fully comply with its recommendations, and pay the Bar’s costs in the amount of $2,830.28. The lawyer filed a Notice of Intent to Review the recommendation. The Court subsequently issued an order directing the lawyer to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction imposed and the lawyer filed a response.

The disciplinary opinion approved the conditions recommended by the referee but rejected the public reprimand and imposed a 10 day suspension. “Although Cohen’s misconduct was relatively minor, and did not cause his client any actual harm, it was nonetheless harmful to the administration of justice and we conclude that his actions warrant harsher discipline than a public reprimand. See Fla. Stds. Imposing Law. Sancs. 6.22 (“Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.”). Cohen’s failure to attend the resentencing hearing was knowing and intentional. Moreover, the referee found that Cohen did not have a conflicting court date; rather, he was working on a filing for another client. Ultimately, Cohen simply chose not to attend a hearing that he knew was scheduled in his client’s case and had not been continued. We agree with the referee’s conclusion that Cohen’s actions were harmful to the legal system and that such conduct cannot be tolerated by an officer of the Court. Thus, we conclude a ten-day suspension is appropriate.”

Bottom line: This is yet another example of the Florida Supreme Court increasing the disciplinary sanction recommended by the referee, in this case, from a public reprimand to a 10 day suspension, because the lawyer’s “actions were harmful to the legal system and such conduct cannot be tolerated by an officer of the court.”

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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