Category Archives: Lawyer dismissal of Bar complaint

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

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

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

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

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

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

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

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

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

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

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

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

Be careful out there.

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

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

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

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

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Louisiana discipline board opinion dismisses ethics charges against lawyer who submitted a fabricated videotape and obtained false testimony at trial

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Attorney Discipline Board opinion which dismissed ethics charges against lawyer who, inter alia, submitted a fabricated videotape and elicited false testimony at a criminal trial. The disciplinary matter is In re: Eric Anthony Wright, 13-DB-003 (12/4/14). The opinion is here: https://www.ladb.org/DR/handler.document.aspx?DocID=8323.

According to the disciplinary board’s opinion, “in 2008 (the lawyer) was retained to represent Ray Boudreaux who was charged with five counts of attempted second degree murder arising from a fight outside a French Quarter club on September 16, 2007 which resulted in at least five people being stabbed.” There was a surveillance videotape of the incident which was produced by the prosecution and admitted at the trial.

A defense investigator had obtained a videotape from the Myspace page of one of the victims made in January 2007 and involved some of the same participants as the September 2007 incident. The client/defendant told the lawyer that he had expertise in digital data transfer techniques and the lawyer told him to prepare the Myspace footage for presentation at the trial. The defendant then made a videotape from the Myspace footage. The lawyer produced the Myspace videotape at the trial and, over the prosecutor’s objection, the judge allowed him to show the fabricated videotape to the jury. The lawyer also put a witness on the stand who falsely testified that the videotape showed the September 2007 incident.

“In response, the state produced a rebuttal witness, Ashley Barriente, who brought a cell phone containing the original footage from the January 2007 fight to the courtroom and showed the original video to the court, the lawyers and jury. She testified that her sister had taken the footage on her (Barriente) cell phone in the French Quarter on January 13, 2007 – nine months before the incident at issue took place.”

“In his sworn statement to (the office of disciplinary counsel), convened after a complaint was filed against him alleging his complicity in suborning perjury and foisting knowingly false physical evidence on the court and the jury, the Respondent insisted that once he learned that the defense video No. 2 was a fabrication, he repudiated the film by deliberately refusing to offer it into evidence. Ultimately, he made no effort whatever to correct the record by acknowledging the false and misleading nature of the proffered video. To the contrary, during closing argument the respondent repeatedly and emphatically insisted that video No. 2 was an authentic depiction of the September 2007 fight to both the court and the jury, going so far as to pointedly attack the credibility of the video’s author, Ms. Barriente, as ‘un-credible’ in his argument to the jury.”

After a disciplinary hearing, the committee made factual findings that the disciplinary counsel’s witness who had testified at trial and identified the videotape was not credible and that the complainant/defendant had refused to testify and invoked his Fifth Amendment rights, which caused the disciplinary counsel to “abandon allegations related to the lawyer’s alleged knowledge and participation in the preparation of the video because of the lack of admissible evidence to support those allegations.”

The hearing committee made further findings of fact that the lawyer did not review the underlying three year old trial transcript in advance of his sworn statement in the disciplinary matter and that he had made misstatements about the events in both his sworn statement and in his response to the charges. The committee stated that the lawyer had “reason to suspect” that the evidence was false; however, he followed his client’s wish to use it.

Notwithstanding the above, the committee found that, although the lawyer had offered inconsistent statements, disciplinary counsel had failed to prove by clear and convincing evidence that the lawyer offered false evidence to the court, made a false statement of fact to the court, or failed to take reasonable measures “when faced with doubt about the authenticity of the evidence presented to the trial court”. Pursuant to same, the committee declined to find that the lawyer violated any Bar Rules and the disciplinary board deferred to the hearing committee’s credibility determinations and dismissed the disciplinary charges.

Bottom line: This is a very unusual disciplinary case on several levels. First, notwithstanding the fact that the lawyer admitted that he used a false videotape and elicited false testimony and had “reason to suspect” that the evidence was false and “made no effort whatever to correct the record by acknowledging the false and misleading nature of the proffered video”, these very serious allegations were dismissed. Second, although the committee found that the lawyer had offered inconsistent stories, it declined to find that he made false statements during the disciplinary investigation.

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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Louisiana Supreme Court refuses to sanction a lawyer who claimed a non-existent specialization on a law firm website because of a lack of a “culpable state of mind”

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary case wherein the court refused to sanction a lawyer who claimed a non-existent specialization on his former law firm website because he did not have a “culpable state of mind” and the public was not harmed. The opinion is In re: Kearney Soniat Du Fossat Loughlin, Supreme Court of Louisiana Case No. 14-B-0923 (September 26, 2014) and is online here: http://www.lasc.org/opinions/2014/14B0923.pc.pdf.

According to the opinion, the lawyer created a website in 2007 to promote his law firm. The home page and the firm profile page had the following statement: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.” In 2009, the lawyer requested that the website be taken down for revisions because his wife, with whom he had been practicing, left the private practice of law.

In October 2011, during an investigation of an unrelated matter, the Louisiana Office of Disciplinary Counsel (“ODC”) accessed the firm profile page of the lawyer’s former website through a web search. After an investigation, a one count formal charge was filed against the lawyer, alleging violations of the Louisiana advertising rules by claiming that he “specialized” in maritime personal injury and death cases, even though that specialization was not recognized and/or approved by the Louisiana Board of Legal Specialization.

The lawyer denied the allegations and, after a hearing, the disciplinary hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases and recommended a reprimand and that the lawyer attend an advertising continuing education course, notwithstanding the fact that such specialization did not exist in Louisiana. The Louisiana disciplinary board approved the findings and recommendation of the committee.

The Court’s opinion reversed the recommended reprimand and imposed no sanction: “The record establishes respondent’s actions were not taken with a culpable mental state. It is also undisputed his actions caused no harm to the public. Considering these factors, we do not find respondent’s actions rise to the level of sanctionable misconduct. Therefore, we will dismiss the formal charges against respondent.”

Bottom line: This opinion clearly seems to indicate that, at least in Louisiana, the Bar must show that a lawyer had a “culpable state of mind” (not mere negligence) to prove a violation of the Bar Rule prohibiting a lawyer’s claim of specialization on a website; however, the fact that Louisiana has no specialization in “maritime personal injury and death cases “ could very well have been an important factor in this decision.

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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Iowa Supreme Court dismisses Bar complaint against a lawyer who was unknowingly involved in fraudulent transfers of a client’s assets

Hello and welcome to this Ethics Alert blog which will discuss the recent Iowa Supreme Court opinion dismissing a disciplinary action against a lawyer who “unknowingly” participated in the fraudulent transfers of a client’s assets to the client’s wife and relatives to avoid creditors. The disciplinary opinion is Iowa Supreme Court Attorney Discipline Board v. Mason James Ouderkirk, No. 13–1124 (March 28, 2014) and the disciplinary opinion is here: http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20140328/13-1124.pdf

According to the opinion, the lawyer represented a wealthy farmer (Rodney Heemstra) who shot and killed his neighbor (Tommy Lyon) and was ultimately convicted of involuntary manslaughter. The lawyer represented the client at the outset of the criminal proceedings and during part of the civil wrongful-death litigation, which later resulted in a multimillion dollar judgment against the client who apparently vowed that the widow “would not get one dime” of his money. The lawyer was involved in the transfers of the client’s assets to revocable trusts, his wife, and relatives.

The deceased neighbor’s widow filed a civil action against the client and several relatives and the court ultimately found that the transactions were fraudulent. Although he was not named as a defendant in the subsequent civil litigation, the lawyer was required to respond to a motion to compel his testimony under the crime-fraud exception of the privilege. The court ruled in that case that “(b)ased on the current state of the record in this case, the court does not find that the Plaintiffs have made a prima facie showing of fraud encouraged or participated in by (the lawyer’s client).”

The deceased neighbor’s widow also filed a Bar complaint against the lawyer and he was charged with violating multiple Bar rules. After a 2 day evidentiary hearing, the Iowa Grievance Commission found that the lawyer had been deceived and was told that there were had valid reasons for transferring the property and that much of the property was being sold to a bona fide purchaser.

The commission also found that, although the lawyer lacked actual knowledge of the fraudulent nature of the transfers, he failed to recognize the “red flags” of one of the fraudulent conveyances and violated several Bar rules, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration for justice. The commission found this conduct to be “an uncharacteristic lapse of his professional judgment” and recommended a public reprimand.

The Supreme Court opinion stated that: “(f)undamentally, it was the (client’s) misrepresentations that triggered the lengthy court proceedings to unwind their fraudulent transactions, not (the lawyer’s) conduct. The opinion concluded that the Board failed to prove “by a convincing preponderance of the evidence” that (the lawyer’s) conduct violated any Bar Rules and dismissed the Bar complaint with prejudice.

Bottom line: This case is unusual since there are very few published Bar discipline opinions which outright dismiss a complaint against a lawyer. This opinion is very lengthy and provides great detail regarding the reasons for the dismissal and citing to numerous cases to support it. Notwithstanding the dismissal of the complaint, the lawyer was required to retain a lawyer and defend himself in the lengthy Bar discipline matter and respond to the motion to compel his testimony in the civil litigation.

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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