Category Archives: Lawyer discipline social media misuse

Washington D.C. lawyer receives informal admonition for revealing client confidences in response to client’s negative website comments

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent informal admonishment of a Washington D.C. lawyer who responded to a client’s negative and critical comments and revealed confidential and specific information about her case, her emotional state, and confidential details about the attorney-client relationship.  The disciplinary case is In re John P. Mahoney, Bar Docket No. 2015-D141 and the ODC’s informal admonition letter is here: http://www.dcbar.org/discipline/informal_admonition/20150609Mahoney.pdf.

The D.C. Office of Disciplinary Counsel (ODC) sent the lawyer a letter dated June 9, 2016 stating that the his internet response to a client’s complaint violated D.C. Bar Rule 1.6 since it revealed attorney/client confidential information and there was no exception to the rule allowing the lawyer to reveal the confidences.  Further, the lawyer violated D.C. Bar Rule 8.4(c)  “when (he) posted a further response on the website concerning Disciplinary Counsel’s investigation of the client’s allegations and Disciplinary Counsel’s statements.”  According to the letter, the lawyer’s claim that he had been “cleared” of the charges in the complaint “was, at best, misleading…”.

The ODC letter states:

The client’s principal complaint was that your fees were excessive. She claimed that she had prepared most of the documents you submitted on her behalf and you billed her an inordinate number of hours to proof or edit the documents, but did not advise her that a concise account of the discrimination she suffered would suffice. She further alleged that the expenses you charged were unwarranted and unnecessary. The client also was critical of your representation of her during the mediation, including the settlement demand that you made on her behalf. She claimed that you were verbally abusive, leading to her terminating the relationship.

After the attorney-client relationship ended, the client posted comments about you on a website in which she was highly critical of you and the representation you provided. You responded to her comments and, in doing so, revealed specific information about her case, her emotional state, and what transpired during your attorney-client relationship – although you did not identify the client by name.

The letter found that there was no misconduct found in the lawyer’s underlying representation of the client.  Under the D.C. Bar rules, since the lawyer did not submit a written request for a hearing within 14 days of the ODC letter, the informal admonition constitutes final discipline.  The lawyer must also complete three hours of CLE related to a lawyer’s confidentiality obligations.

Bottom line:  This lawyer responded to what he believed were false allegations by a client on a public website and provided attorney/client confidential information in defending himself.  Unfortunately, responding  to internet allegations is not one of the exceptions to the Bar confidentiality rules (Rule 4-1.6 in Florida) which permits a lawyer to reveal client confidences.

As I have stated in my earlier blogs on this topic, in our digital/instant communication brave new world, it is much too easy to react quickly and badly to a  perceived slight, such as a bad client internet review.  Before responding to any internet postings, a lawyer must seriously consider the ethical implications and not act impulsively and reveal confidential information, which may result in a Bar investigation and potential sanctions.

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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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New Jersey Supreme Court opinion holds that lawyers accused of improper Facebook access can be charged with ethics violations

 

Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of New Jersey opinion which held that lawyers who allegedly engaged in improper conduct related to access of an opposing party’s Facebook page can be charged with disciplinary rule violations.  The disciplinary matter is John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (New Jersey Supreme Court 4/19/16).  The disciplinary opinion is here: http://www.judiciary.state.nj.us/opinions/supreme/A6214JohnRobNJ.pdf

According to the opinion, in the underlying matter, the plaintiff sued Bergen County New Jersey related to injuries that he allegedly sustained when a police car struck him in 2007.  The two lawyers represented the plaintiff and:

“(i)n order to obtain information about Hernandez, plaintiffs directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s “friends.” The OAE contends that plaintiffs directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account.  She therefore submitted a “friend request” to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.

The opinion states that the plaintiff learned of the alleged misconduct when the lawyers “sought to add the paralegal as a trial witness and disclosed printouts” from the plaintiff’s Facebook page.  The opinion did not address whether the two lawyers violated any ethics rules or should face sanctions, but whether the New Jersey Office of Attorney Ethics (OAE) could prosecute the lawyers for the alleged misconduct after a regional disciplinary committee found that the lawyers’ actions, even if proven, did not constitute unethical conduct and dismissed the matters.

The OAE disagreed with the disciplinary committee and filed a disciplinary complaint with the Supreme Court against the lawyers.  The complaints alleged, inter alia, that the two lawyers communicated with a represented party without consent of the party’s lawyer and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.  The two lawyers argued that they acted in good faith and had not committed any unethical conduct. They also stated that they were “unfamiliar with the different privacy settings on Facebook.

The opinion noted the unique nature of this attorney disciplinary matter and stated that it involves a “novel ethical issue” and “no reported case law in our State addresses the sort of conduct alleged.”  The court unanimously held:

“Consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.”

Bottom line:  Lawyers beware: although this issue has not previously been addressed by the New Jersey Supreme Court (or the Florida Supreme Court), the Florida Bar Rules (and the Bar disciplinary rules of most, if not all jurisdictions, including New Jersey), prohibit a lawyer from communicating with a represented person without the consent of that person’s lawyer.  Florida Bar Rule 4-4.2(a) prohibits lawyers from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”  The Rule is here:  Florida Bar Rule 4-4.2.  This rule would appear to prohibit a lawyer (or the lawyer’s agent) from accessing an opposing party’s Facebook (or other social media) page by sending a “friend” or other request and obtaining information that has been made private on that person’s settings.

Be careful out there.

If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

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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Louisiana lawyer disbarred for social media campaign with “false, misleading and inflammatory statements” to influence custody case

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary opinion disbarring a lawyer who, inter alia, made false statements and used Twitter and an online petition to urge readers to contact two presiding judges who she alleged were unwilling to consider the evidence in two child custody cases involving allegations of sexual abuse.  The disciplinary opinion is In Re: Joyce Nanine McCool, No. 2015-B-0284 (June 30, 2015) and the opinion is online here: http://www.lasc.org/opinions/2015/15B0284.opn.pdf

According to the opinion, the lawyer solicited others to make ex-parte contact with presiding judges and the Louisiana Supreme Court to make comments about the cases, which were sealed and confidential proceedings.  The opinion referred to several examples of the lawyer’s media comments, including this tweet: “GIMME GIMME GIMME Evidence! Want some? I got it. Think u can convince a judge to look at it? Sign this petition.”  “Another tweet said, ―Judge

Gambrell at it again – turned a 4 YO child over to a validated abuser – PLEASE TELL ME WHAT IT WILL TAKE FOR EVERYON [sic] TO SAY ‗ENOUGH‘.”

The lawyer also made the following comment: “Please sign the petition, circulate it to all of your friends and families and call Judge Amacker and Judge Gambrell during the hours of 8:30 to 5:00 starting Monday, August 15 to ask why they won’t follow the law and protect these children. Let them know you’re watching and expect them to do their job and most of all, make sure these precious little girls are safe!”

The opinion stated: “These online articles and postings by respondent contain numerous false, misleading, and inflammatory statements about the manner in which (the presiding judges) were handling the pending cases. But respondent denies any responsibility for these misstatements, contending these were ―Raven‘s perceptions of what had happened‖ and respondent was simply ―helping [Raven] get her voice out there.”

The lawyer argued that her conduct was protected by the First Amendment; however, the majority of the Court rejected that argument. “We disagree and take strong exception to respondent’s artful attempt to use the First Amendment as a shield against her clearly and convincingly proven ethical misconduct.” The opinion also stated that the lawyer had an “utter lack of remorse” and a “defiant attitude” by asserting her actions had First Amendment protection.  “The appropriate method for challenging a judge’s decisions and evidentiary rulings, as respondent even conceded, is through the writ and appeal process, not by starting a social media blitz to influence the judges’ and this court’s rulings in pending matters and then claiming immunity from discipline through the First Amendment.”

A disciplinary hearing committee conducted a hearing on February 27, 2014, and March 27, 2014 in which both presiding judges testified. The lawyer also testified and repeatedly denied that she violated the Rules of Professional Conduct.  She also implied and/or stated that her conduct was justified by what the judges had done in the underlying cases and in the interest of protecting the minor children.  The hearing committee recommended that the lawyer be found guilty and recommended a suspension of a year and a day and the disciplinary board concurred.

The opinion concluded: “Respondent’s misconduct is further distinguishable because of her use of the internet and social media to facilitate her misconduct.  As a result, the petition and associated offensive postings had and still have the potential to reach a large number of people world-wide and remain present and accessible on the world wide web even today.  Coupled with her complete lack of remorse and admitted refusal to simply allow our system of review to work without seeking outside interference, respondent’s misconduct reflects a horrifying lack of respect for the dignity, impartiality, and authority of our courts and our judicial process as a whole.”

“Respondent’s social media campaign conducted outside the sealed realm of the underlying judicial proceedings constitutes, in our view, an intolerable disservice to these traditions and our judicial system, which the constraints of our rules of professional conduct seek to safeguard against. Accordingly, we find her ethical misconduct warrants the highest of sanction—disbarment.”

Bottom line:  This lawyer’s misconduct involved the extensive use of social media in a campaign to discredit the judicial system/obtain justice for the children.  The Louisiana Supreme Court found that her misconduct “reflects a horrifying lack of respect for the dignity, impartiality, and authority of our courts and our judicial process as a whole.”  All lawyers must be very wary of using social media to promote their clients’ causes.  This lawyer’s use of social media led to her disbarment.

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

www.jac-law.com

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Illinois lawyer charged in disciplinary complaint with violating client confidences in response to unfavorable client review on AVVO

Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary complaint filed by the Illinois Attorney Registration and Disciplinary Commission against an Illinois lawyer who, inter alia, allegedly violated her client’s confidences when she posted a response to a client’s allegedly false AVVO post.  The case is In the Matter of Betty Tsamis, No. 6288664, Commission No. 2013PR00095 (August 26, 2013).  The disciplinary complaint is at http://www.iardc.org/13PR0095CM.html.

The disciplinary complaint has two counts.  Count I alleges that the lawyer converted $2,057.54 from the settlement proceeds of a client named Kris Klimek and Count II alleges that the lawyer violated her duty of confidentiality to another client named Richard Rinehart by revealing confidential information in responding to a client’s unfavorable review on AVVO.

According to Count I of the complaint, “(o)n or about September 6, 2012, (the lawyer) agreed to represent Richard Rinehart (“Rinehart”) in matters related to Rinehart’s securing unemployment benefits from his former employer, American Airlines. Shortly before hiring (the lawyer), American Airlines had terminated Rinehart’s employment as a flight attendant because Rinehart allegedly assaulted a fellow flight attendant during a flight. At that time, Rinehart paid (the lawyer) $1,500 towards her fee.”

“Between September 6, 2012 and January 16, 2013, (the lawyer) met with Rinehart on at least two occasions and obtained information from Rinehart concerning his employment history at American Airlines and information concerning the alleged incident involving the other flight attendant. (The lawyer) also reviewed Rinehart’s personnel file, which she had obtained from American Airlines.  On or about January 16, 2013, (the lawyer) represented Rinehart at a telephonic hearing before the Illinois Department of Employment Security (“IDES”), which resulted in the IDES denying Rinehart unemployment benefits. Shortly thereafter, Rinehart terminated (the lawyer’s) representation of him. “

“On or about February 5, 2013, Rinehart posted a client review of (the lawyer’s) services on the legal referral website AVVO, in which he discussed his dissatisfaction with (the lawyer’s)  services. Rinehart stated in the posting that ‘She only wants your money, claims ‘always on your side’ is a huge lie.  Paid her to help me secure unemployment, she took my money knowing full well a certain law in Illinois would not let me collect unemployment. [N]ow is billing me for an additional $1500 for her time.’  Between February 7, 2013 and February 8, 2013, (the lawyer) contacted Rinehart by email and requested that Rinehart remove the February 5, 2013 posting about her on AVVO. Rinehart responded that he refused to remove the posting unless he received a copy of his files and a full refund of the $1,500 he had paid.”

“Sometime between February 5, 2013 and April 10, 2013, AVVO removed Rinehart’s posting from its online client reviews of (the lawyer).  On or about April 10, 2013, Rinehart posted a second client review of (the lawyer) on AVVO. In the April 10, 2013 posting, Rinehart stated that ‘I paid Ms. Tsamis $1500 to help me secure unemployment while she knew full well that a law in Illinois would prevent me from obtaining unemployment benefits.'”

“On or about April 11, 2013, (the lawyer) posted a reply to Rinehart’s April 10, 2013 client review. In that reply (the lawyer) stated that:  ‘This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.'”

By stating in her April 11, 2013 AVVO posting that Rinehart beat up a female coworker, (the lawyer) revealed information that she had obtained from Rinehart about the termination of his employment. (The lawyer’s) statements in the posting were designed to intimidate and embarrass Rinehart and to keep him from posting additional information about her on the AVVO website.”

Bottom line:  As I previously stated, all communication via digital media is a potential minefield, which this case illustrates.  Although lawyers are generally permitted to reveal confidences to defend allegations by clients against them, and it appears that the lawyer was justified in her frustration with the (former) client, she may have gone too far by revealing confidential information that went beyond the information necessary to defend herself against the allegedly false statements made by the client in the AVVO post.  We will see…

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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Illinois Hearing Board recommends 5 month suspension for lawyer who posted undercover video related to client on Youtube and alleged that the drugs were planted

Hello and welcome to this Ethics Alert blog which will discuss the recent report and recommendation of an Illinois disciplinary hearing board that an Illinois lawyer be suspended for 5 months for posting an undercover video of an alleged drug transaction of his client on Youtube and alleged that the drugs were planted.  The disciplinary case is In re Jesse Raymond Gilsdorf, Commission No. 2012PR00006 (June 4, 2013).  The disciplinary Complaint is here: https://www.iardc.org/12PR0006CM.html and the Board’s Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10978.    

According to the Report and Recommendation, “the charges of misconduct arose out of  the Respondent knowingly posting on an Internet site, and showing to others, a DVD video he received from the state’s attorney while representing a criminal  defendant.  The video showed the undercover drug transaction between Respondent’s  client and a confidential police source.  The Respondent entitled the video ‘Cops and Task Force Planting Drugs,’ which was false.  By posting the video while his client’s criminal case was pending, Respondent intended to persuade residents of the county that the police or other government officials acted improperly in the prosecution of his client.

The Hearing Board found that the Respondent engaged in the misconduct charged in both counts.  Specifically, he revealed information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation; failed to reasonably consult with the client about the  means by which the client’s objectives are to be accomplished); made extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding; engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.”

The report and recommendation of the hearing board will now be considered by the Illinois disciplinary review board and will ultimately be reviewed by the Illinois Supreme Court for a final disciplinary opinion.

Bottom line: This is another example of the use (or misuse) of social media potentially resulting in a lawyer’s discipline.  Lawyers must be aware of the requirement of maintaining client confidentiality and the risk of making statements that are false about a client’s case as well as the inherent dangers of using social media in the lawyer’s practice.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me. 

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, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer discipline social media misuse, Lawyer sanctions, Lawyers and social media, Lawyers and social media youtube, Privilege