Category Archives: Lawyer ethics

Pennsylvania lawyer disbarred after secretly referring his law firm’s clients to outside lawyers

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Pennsylvania Supreme Court Order disbarring a lawyer after his conviction for defrauding his law firm out of $3.4 million by secretly referring its personal injury clients to outside lawyers for a percentage of the fees that were generated in the matters.  The case is Office of Disciplinary Counsel v. Neil I. Mittin, No. 2669.  The June 11, 2020 Pennsylvania Supreme Court Order disbarring the lawyer on consent and the lawyer’s Disciplinary Resignation are here:  http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/187DB2019-Mittin.pdf

The lawyer was admitted to practice in Pennsylvania 1979 and had practiced law at the law firm where he was a named partner for 38 years. The lawyer pled guilty to mail fraud in September 2019 and was sentenced to five years in prison in March 2020.  He was alleged to have defrauded law firm out of more than $4 million in legal fees; however, the Court awarded $3.4 million in restitution when he pled guilty to the criminal charges.

The lawyer was alleged to have intercepted numerous personal injury and other legal matters from the law firm and then referred to outside attorneys.  The lawyer allegedly hid the scheme from his law firm by making it appear there were no settlements or resolutions and that cases were not viable and then referring the cases to other lawyers, who would represent the clients through settlements or trials, prosecutors said.

If the cases were resolved successfully, the lawyers paid a referral fee between 33% and 40% of the contingency fees and reimbursement for costs incurred by the lawyer’s firm before the cases were referred.

Bottom line: This was a million dollar scheme to defraud a law firm by a member of that same law firm, who had worked there for 38 years and was a named partner.  It doesn’t get much more greedy than that.

Stay safe and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer bad conduct, Lawyer conduct adversely affecting fitness to practice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer stealing from law firm, misrepresentations, Uncategorized

ABA Formal Ethics Opinion 492 addresses lawyer’s obligations to prospective clients after obtaining “significantly harmful” information

Hello everyone and welcome to this Ethics Alert, which will discuss the recent American Bar Association (ABA) Formal Ethics Opinion 492, which addresses the obligations of lawyers to prospective clients, including confidentiality, and conflicts of interest, including potential disqualifying conflicts after the lawyer obtains “significantly harmful” information.  The link to ABA Formal Opinion 492 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-492.pdf

The ABA issued Formal Ethics Opinion 492 on June 9, 2020.  The opinion addresses a lawyer’s obligations to prospective client and discusses who is a “prospective client”, the obligation to protect confidential information, disqualifying conflicts because of the acquisition of “significantly harmful” information, and limiting information during an initial consultation and avoiding the imputation of conflicts to the firm.

“A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter.

“Model Rule 1.18(b) imposes a duty of confidentiality with respect to information learned during a consultation, even when no client-lawyer relationship ensues. It provides: Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.”

“Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).”

The opinion concludes that a lawyer who receives information from a prospective client that could be “significantly harmful” and then represents a client in the same or a substantially related matter where that client’s interests are materially adverse to those of the prospective client would violate Model Rule 1.18(c) unless the conflict is waived by the prospective client.

Bottom line:  This opinion provides detailed information to assist lawyers in analyzing ethics issues that may arise related to prospective clients when the lawyer obtains “significantly harmful” information and provides guidance on how to identify and address those issues and comply with the lawyer’s ethical obligations.

Stay safe and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under ABA Model Rules, ABA Opinion 492- prospective clients and "significantly harmful" information, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Privilege, Prospective clients conflict of interest, Uncategorized

Two Texas lawyers arrested on conspiracy to commit murder charges in alleged plot to kill another lawyer

Hello everyone and welcome to this Ethics Alert, which will discuss the recent arrest of two lawyers in Waco, Texas, on charges of felony conspiracy to commit capital murder in an alleged plot to kill another attorney.

According to media reports, the lawyers include a well-known criminal defense lawyer in Waco, Texas and an associate lawyer who works at his firm.  The lawyers allegedly tried to hire a contract killer to carry the murder of the associate’s  former husband, who is also a lawyer.  The former husband was arrested in February 2020 and charged with improper sexual contact with a 10-year-old female family member in December 2019.

The alleged contract killer was actually an undercover police officer, who apparently infiltrated the motorcycle club in which the criminal defense lawyer was a founder and president.  The law enforcement arrest affidavit allege that the criminal defense lawyer solicited the undercover officer to kill the former husband on May 14, 2020 and allegedly offered the officer $300.00 to buy a gun and stated he would help him leave town after the killing.

On May 21, 2020, the lawyers allegedly met with the undercover officer, instructed him to kill the former husband at his home, and gave him the $300.00 to buy the gun.  The arrest affidavits do not specify how much the lawyers offered to pay for the contract killing or why they wanted him killed. The lawyers were released from jail after each posting $1 million bonds.

Bottom line:  This is another very bizarre story involving lawyers.  These lawyers apparently decided to hire a contract killer to murder the former husband, who is accused of improper sexual contact with a 10-year-old female family member, instead of allowing the judicial system to run its course.

Stay safe and healthy and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer bad conduct, Lawyer criminal conduct, Lawyer criminal misconduct murder for hire, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

New Jersey lawyer suspended for, inter alia, revealing confidential information in review of former client’s business

Hello everyone and welcome to this Ethics Alert, which will discuss recent New Jersey Supreme Court opinion which imposed a one year suspension on a lawyer for, inter alia, providing a negative public review of a client’s business on Yelp and disclosing confidential information in the review.  The case is: In the Matter of Brian LeBon Calpin (New Jersey Supreme Court No. D-67 083821).  The May 7, 2020 opinion is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1129260

The NJ SC opinion essentially adopts the NJ Disciplinary Review Board Decision which found that the lawyer posted a negative public review of the client’s massage business on June 24, 2018 on the Yelp website after the client had posted public negative online reviews of his legal services.  The lawyer had ceased representing the client in “early summer 2017”.  The DRB Decision is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1124239

According to the Decision, the lawyer’s review of the former client’s massage business on Yelp stated:

“Well, Angee is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

The Decision further states that, in his response to the ethics complaint, lawyer stated:

“As to the Yelp rating about (the former client’s) massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment. However, it was not unethical. That posting has subsequently been taken down.”

The Decision found that, although the information posted by the lawyer may have been publicly available, the information was not generally known; therefore, the “generally known” exception in the New Jersey Bar rules regarding client confidentiality did not apply.  The decision also quoted ABA Formal Opinion 479 (December 15, 2017):  “[T]he phrase ‘generally known’ means much more than publicly available or accessible. It means that the information has already received widespread publicity.”

The Decision also found that the lawyer’s conduct in three other client matters violated ethics rules related to neglect, diligence, failure to keep clients informed, failure to deliver client funds or property, and failure to return client property after representation. The lawyer also told to a Bar investigator that he had sent a refund check to a former client, which was a misrepresentation.

The lawyer had prior discipline for “similar ethics infractions, evidencing his failure to learn from past mistakes: a June 19, 2014 reprimand for gross neglect, lack of diligence, and failure to communicate with a client, and a January 24, 2017 admonition for lack of diligence in a client matter.”

Bottom line:  This is another unfortunate example of a lawyer reacting badly to a client’s negative online review and including confidential (and not generally known) information in responding to a negative client review.  As I have said and written many times, lawyers are not permitted to include client confidential information in responding to negative online reviews that are in the public domain.

Stay safe and healthy and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under ABA Formal Opinion 479 former client confidentiality, Attorney discipline, Attorney Ethics, Attorney misrepresentation, attorney-client privilege, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Confidentiality, Confidentiality and privilege, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer communication over internet- confidentiality, lawyer confidentiality, Lawyer derogatory remarks, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics responding to negative online review complaint confidentiality, Lawyer false statements, Lawyer negative Yelp review of client- confidentiality, Lawyer sanctions, Lawyers and social media, misrepresentations, Uncategorized

Utah Supreme Court proposals would permit non-lawyers to own law firms and share fees with lawyers

Hello everyone and welcome to this Ethics Alert, which will discuss recent Utah Supreme Court proposals which would permit non-lawyers to own law firms, share fees with lawyers, and make other significant revisions.  The link with the Utah Supreme Court Regulatory Reform Proposals is here:  http://www.utcourts.gov/utc/rules-comment/2020/04/24/supreme-court-regulatory-reform-proposal-comment-period-closes-july-23-2020/

The proposals would allow non-lawyers to own or invest in law firms, eliminate the prohibition on attorney fee sharing with non-lawyers, and create a new Office of Legal Services Innovation.  These proposals result from a review conducted by Utah’s Implementation Task Force on Regulatory Reform, which was created after a working group issued a report in 2019 recommending a variety of measures to address access to legal services. The Utah Supreme Court is requesting comments by July 23, 2020.

If the proposals are implemented, Utah would join the United Kingdom and Australia in permitting such activities and it would the first U.S. jurisdiction to make these changes, although Washington D.C. does allow non-lawyers to own law firms).

If the proposals are adopted, a pilot regulatory “sandbox” would oversee and evaluate nontraditional legal services providers and entities offering new types of legal services. The oversight would be provided by a new Office of Legal Services Innovation, which would conduct reviews to ensure that “sandbox” participants are meeting the various objectives and principles set forth by the Utah Supreme Court.  A process would also be established for determining which participants would receive the appropriate license to practice law.

The Utah Supreme Court issued a press release on April 24, 2020 describing the proposals and providing information.  The link to the press release is here: http://www.utcourts.gov/utc/rules-comment/wp-content/uploads/sites/31/2020/04/Supreme-Court-Regulatory-Reform-PR-4-24-20.pdf.  According to the press release:

“The Utah Supreme Court has recognized the lack of affordable legal services can be devastating for many people. Between free but limited legal aid, and standard attorney service that can easily exceed $200 an hour, there are few options for affordable legal help.  The current COVID-19 pandemic has underscored the importance of finding new, affordable, and high-quality innovations as quickly as possible.

That is why the Supreme Court is offering expedited review and approval of proposals from individuals and entities who believe they can offer low-cost, or no-cost, legal advice for small businesses, people with unemployment issues, and others.”

Bottom line:  These Utah Supreme Court proposals have been under review and consideration in Utah for a number of years and I have previously blogged about them.  It now appears that the Covid-19 pandemic and the ongoing economic disruption have accelerated the Utah Supreme Court’s view of the necessity for these revisions/programs and that the changes be expedited.

Stay safe and healthy and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sharing fees with non-lawyers, Non-lawyer ownership, Non-lawyer ownership of law firms, non-lawyer ownership of law firms and fee splitting

ABA Formal Opinion 491 discusses a lawyer’s obligation to avoid counseling or assisting a client in a crime or fraud

Hello everyone and welcome to this Ethics Alert, which will discuss recent ABA  Formal Opinion 491 (issued 4/29/20), which discusses and provides guidance regarding a lawyer’s obligation to avoid counseling or assisting in crime or fraud in non-litigation settings.  The opinion is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-491.pdf

The opinion states:  “ABA Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in a transaction or other non-litigation matter the lawyer ‘knows’ is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness or conscious disregard of available facts.”

“Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish ‘knowledge’ under Rule 1.2(d), other rules may require further inquiry to help the client avoid crime or fraud, to advance the client’s legitimate interests, and to avoid professional misconduct. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4.”

“A lawyer’s reasonable evaluation after that inquiry based on information reasonably available at the time does not violate the rules. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.”

The opinion concludes that: “where there is a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer must inquire further to avoid advising or assisting such activity” and “(i)f the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16.”

Bottom line:  This ABA opinion states that, in order to comply with the lawyer’s obligations under ABA Rule 1.2(d) (which is substantial similar to Florida Bar Rule 4-1.2(d), if there is “a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity”, the lawyer cannot engage in “willful blindness or conscious disregard of available facts” and the lawyer “must inquire further to avoid advising or assisting such activity.

Stay safe and healthy and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under ABA Formal Opinion 491- avoiding counseling or assisting criminal conduct, ABA formal opinions, ABA Model Rules, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Uncategorized

Ohio lawyer who stole $128,674.30 from mentally ill client, including charging hourly rate for mowing her lawn, indefinitely suspended

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Ohio Supreme Court opinion indefinitely suspending an Ohio lawyer who stole over $128,674.30 from mentally ill client, including charging hourly rate for mowing her lawn, helping find an apartment, and shopping for her.  The case is Disciplinary Counsel v. Buttars, Slip Opinion No. 2020-Ohio-1511.  The April 21, 2020 opinion is here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-1511.pdf

According to the opinion, the lawyer first began working for the client, who suffered from mental illness, alcoholism, and depression, in 2015. His law firm agreed to represent the client for $20 per month but the lawyer entered into a separate written fee agreement to represent her “in any capacity” at an hourly billable rate of $250.00.  The client told the lawyer that she could not pay him immediately; however, she was going to receive “a substantial inheritance” from her mother’s estate when the mother passed away.

After the client’s mother died in 2015, the lawyer, who had his own law firm at that time, assisted with the administration of the client’s mother’s estate and also performed nonlegal, personal jobs for her, including assisting her with a new apartment, mowing her lawn, and shopping for her. He charged either his hourly rate of $250.00 or the paralegal rate of $150.00 per hour.

The lawyer transferred $10,000.00 from one of the client’s bank accounts in May 2016 for personal and business expenses.  He told her that he made a mistake and advised her to sign a promissory note saying that it was a loan; however, he did not advise her that she could seek independent counsel on the issue.

The lawyer was convicted of fourth-degree felony theft from the client in May 2019 and was temporarily suspended based upon that conviction.  A disciplinary complaint was subsequently filed against the lawyer for violating rules prohibiting collecting illegal or clearly excessive fees; entering into a business transaction with a client without complying with the requirements of the disciplinary rules; and fraud.

According to the opinion, “(t)he parties stipulated—and the board agreed—that although (the lawyer) transferred $147,710.85 from E.H.’s accounts, he and his law firm had earned only $19,036.55, leaving $128,674.30 as the total amount that he had either stolen or overcharged. (The lawyer) repaid to E.H. $12,500 in January 2017 and $50,000 during his criminal proceeding. Therefore, at the time of his disciplinary hearing, he owed E.H. restitution in the amount of $66,174.30, which included the $29,450 that he had been ordered to make as part of his criminal sentence. Because the criminal case did not account for the amounts that (the lawyer) had overcharged E.H., the restitution amount in this disciplinary matter is substantially greater than that ordered in (the lawyer’s) criminal case.”

The lawyer paid $12,500.00 back in January 2017 and $50,000.00 during the criminal proceedings, which left a balance of more than $66,000.00 owed, including $29,450.00 that the lawyer had been ordered to make as part of his criminal sentence.  The opinion found aggravating factors of acting with a dishonest and selfish motive, engaging in a pattern of misconduct, and committing multiple offenses while representing a “particularly vulnerable client”.

According to the opinion, “(t)he presumptive sanction for an attorney’s misappropriation of client funds is disbarment, but that presumption may be tempered with sufficient evidence of mitigating or extenuating circumstances…(t)he board accepted the parties’ proposed sanction and recommends that we indefinitely suspend (the lawyer)—rather than disbar him—based on his acceptance of responsibility, sincere remorse, and commitment to make things right with E.H. To support its recommendation, the board cited two cases in which we indefinitely suspended attorneys who similarly misappropriated funds while serving in positions of trust.”

The opinion imposed an indefinite suspension, with no credit for the time that he was suspended under the interim felony suspension and his reinstatement was conditioned upon proof of the lawyer’s payment of the remaining $66,000.00 owed his client.

Bottom line:  This lawyer admitted stealing or “overcharging” $128,674.30 from the client; however, he was indefinitely suspended and not disbarred.  This most likely would not happened in Florida (or most other jurisdictions).

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under and fraud, Attorney discipline, Attorney Ethics, Client with diminished capacity, deceit, dishonesty, Excessive fee, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conflict of interest, Lawyer discipline, Lawyer discipline false client billings, Lawyer discipline for criminalconviction, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer excessive fee, Lawyer excessive fees, lawyer false billing, lawyer felony suspension, Lawyer improper fees, Lawyer misrepresentation, Lawyer sanctions, Lawyer unreasonable fee, Lawyers false billings discipline, misrepresentations, Ohio felony suspension, Ohio indefinite suspension theft from client, Uncategorized

Florida Bar Board of Governors reverses advertising opinion and finds that solicitation rules apply to targeted social media

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG)  reversal of a Florida Bar advertising committee opinion that found that targeted social media advertisements were not subject to the solicitation rules.

The BOG voted at its January 2020 meeting to reverse an opinion by the Bar’s Standing Committee on Advertising related to a lawyer who wanted to use information that prospective class action members provided to social media platforms and target specific advertisements to their social media feeds.  The BOG’s Board Review Committee had previously voted 9-0 to recommend that the BOG reverse the Standing Committee on Advertising and find that these types of advertisements are direct solicitations and are required to comply with the direct contact/solicitation rules.

The inquiring lawyer did not indicate the specific legal matter that would be pursued; however, the lawyer gave, as an example, an advertisement for an employment class action that would be targeted to users who had told social media providers that they currently or previously worked for the potential defendant company.

The Bar advertising committee’s opinion found that this type of advertisement was subject to the direct contact/solicitation rule; however, it must comply with the general advertising rules.  The Florida Bar staff and professional ethics committee had also previously issued opinions stating that a lawyer posting information in an online chat room or sending text messages to telephones are required to comply with the direct contact/solicitation rules.

Bottom line:  As a result of the BOG decision (and unless it is reversed), lawyers who wish to use such targeted social media advertisements will be required to comply with the strict requirements of Florida Bar Rule 4-7.18(b) regarding direct contact with prospective clients.  Lawyers should also keep in mind that ethics and advertising opinions (and a BOG reversal of an opinion) are not binding and for guidance only; however, lawyers may be still subject to investigation and potential discipline if the interpretation of the rule is upheld.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Bar Rule 4-7.18, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida lawyer solicitation social media class action Rule 4-7.18, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer social media ethics, Lawyer solicitation class action social media, Lawyer solicitation social media, Uncategorized

Florida Bar Ethics Committee votes to publish proposed opinion providing guidance in responding to negative online reviews

Hello everyone and welcome to this Ethics Alert, which will discuss the recent vote by the Florida Bar’s Professional Ethics Committee (PEC) to publish a proposed ethics advisory opinion providing guidance to lawyers in responding to negative online reviews and complaint for comment.  Proposed Ethics Advisory Opinion 20-1 is here: https://www.floridabar.org/the-florida-bar-news/committee-adopts-ethics-opinion-regarding-online-reviews/

The PEC voted at its February 7, 2020 meeting to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members.

The Florida Bar ethics staff previously issued Florida Bar Staff Opinion 38049 in 2018 in response to a lawyer’s inquiry.  The BOG approved the staff opinion on June 15, 2018; however, since the opinion was a reply to a single lawyer, it was not published.  I discussed  Florida Bar Staff Opinion 38049 provided a link to that opinion here: https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/

That staff opinion was minimally revised by the PEC and will be published online and in print in The Florida News for Bar member comments. The proposed formal advisory opinion concludes:

“Therefore, if the inquirer chooses to respond to the negative online review and the inquirer does not obtain the former client’s informed consent to reveal confidential information, the inquirer must not reveal confidential information regarding the representation, but must only respond in a general way, such as that the inquirer disagrees with the client’s statements. The inquirer should not disclose that the court entered an order allowing the inquirer to withdraw because that is information relating to the client’s representation and the client did not give informed consent for the inquirer to disclose.”

The proposed advisory opinion states that Florida Bar Rule 4-1.6(c) provides 6 exceptions permitting or mandating that a lawyer reveal confidential client information; however, none of the exceptions addresses online reviews.  The proposed opinion also refers to the comment to Florida Bar Rule 4-1.6, which states:

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation….(t)he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

The proposed opinion states that the language in Texas Ethics Opinion 622 “would be an acceptable response” to negative online reviews:

“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”  “The (lawyer) also may state that the (lawyer) disagrees with the facts stated in the review.”

According to the Bar’s Notice, the PEC will consider any comments received at their meeting on Friday, June 19, 2020 in Orlando.

“Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 31, 2020.”

Bottom line:  Lawyers must be aware that negative online reviews do not fall within any of the exceptions which permit or require revealing confidential client information and, absent client informed consent, lawyers are not permitted to reveal confidential information in responding to the negative review.  In our digital and social media age, perhaps a change in the Bar Rule permitting such responses would be appropriate.

I will keep you advised and 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Proposed North Carolina Bar ethics opinion states that lawyers may only make “restrained” responses to negative online reviews

Hello everyone and welcome to this Ethics Alert which will discuss recent proposed North Carolina Bar 2020 Formal Ethics Opinion 1, which states that lawyers are prohibited from revealing confidential information in response to a negative online post; however, the lawyer can make a “proportional and restrained” response.  Proposed NC Bar 2020 Formal Ethics Opinion 1 is here:   https://www.ncbar.gov/for-lawyers/ethics/proposed-opinions/

At its meeting in January 2020, the North Carolina State Bar Council adopted an ethics opinion stating that lawyers may post “a proportional and restrained” response to negative online reviews by former clients, but are prohibited from disclosing confidential information.  North Carolina lawyers have until March 30, 2020 to comment on the proposed ethics opinion.

The proposed ethics opinion responds to an inquiry by a North Carolina lawyer who believed that some online comments by a former client were false. The lawyer believed he could rebut the allegations using confidential information.  The proposed ethics opinions states that lawyers are prohibited from revealing confidential information without client consent, or unless an exception applies.

The ethics opinion discusses the exception to the confidentiality rule that permit a lawyer to reveal confidential information to the extent the lawyer reasonably thinks is necessary to defend a criminal charge or civil claim based on the client’s conduct, to establish a claim or defense in a controversy between the lawyer and client, or to respond to allegations in any proceeding involving the lawyer’s representation of the client.

The opinion discusses what it calls the “self-defense” exception, which permits a lawyer to reveal confidential information to defend him or herself applies to legal claims and disciplinary charges arising in a civil, criminal, disciplinary or other proceeding and states that “(a) negative online review does not fall within these categories and, therefore, does not trigger the self-defense exception.”

Florida, Pennsylvania, Texas, and New York Ethics Opinions have made similar conclusions.  My August 2018 blog on the Florida Bar Board of Governor’s approval of Florida Bar Staff Opinion 38049, which states that a lawyer may post only a limited response to a negative online review that the lawyer said falsely accused her of theft and may not reveal attorney/client confidences is here:  https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/.

Bottom line:  This proposed ethics opinion is consistent with other ethics opinions which have examined this issue, including Florida. Unless the exceptions to the rule are revised in the lawyer’s jurisdiction, lawyers will continue to be prohibited from providing confidential information in rebutting allegations in online reviews by clients or former clients.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Confidentiality, Florida Bar ethics opinion responding to negative online review, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics responding to negative online review complaint confidentiality, Uncategorized