Category Archives: Lawyer false testimony

Lawyer receives 1 year suspension in New York and Oregon for, inter alia, falsely claiming completion of CLE

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York appellate court opinion suspending a New York lawyer for one year on a reciprocal basis after he was suspended by the Oregon Supreme Court for one year for making false representations regarding his completion of the required Oregon CLE and providing false testimony.  The New York case is: Matter of Joseph R. Sanchez, 017 NY Slip Op 01869 (Appellate Division, Second Department March 15, 2017) and the New York opinion is here:  http://www.nycourts.gov/reporter/3dseries/2017/2017_01869.htm.  The Oregon disciplinary board opinion is here:  http://www.osbar.org/_docs/dbreport/dbr29.pdf

The lawyer was admitted to practice in both New York and Oregon.  He was required to complete 45 CLE hours for the 2009 to 2011 Oregon reporting period and he purchased on-line CLE courses.  Two days later, he certified to the Oregon Bar that he had completed the required 45 hours of CLE although he had not previously completed any CLE for that reporting period.

After receiving the lawyer’s certification, the Oregon Bar’s CLE administrator asked him how he was able to watch 48 hours of CLE courses in about one day.  The lawyer responded by providing copies of his CLE completion certificates.  He later provided “evasive, incomplete and/or untruthful” answers under oath. The panel also found that the lawyer made the misrepresentations knowingly and intentionally.

According to the New York opinion:

“The trial panel found the respondent’s overall testimony lacking in credibility:

(The lawyer’s) testimony was inconsistent with his prior writings, including an affidavit he prepared and signed under oath in 2012. The testimony he provided at the hearing was inconsistent with the testimony he previously provided at his deposition in this matter on September 3, 2014, which was also provided under oath. The [respondent] presented facts during his testimony that he had never presented before, notwithstanding having had multiple opportunities to have done so during the course of the [Oregon] Bar’s investigation. Put simply, the panel finds that the [respondent’s] testimony was untruthful. Lastly, the panel finds that the [respondent] made his misrepresentations knowingly and intentionally. The [respondent] was provided multiple opportunities to explain how he could have possibly fit 48 hours of work into a shorter (and potentially significantly shorter) period of time and each time he failed to do so. It is clear he changed the facts over time, [and] added explanations’ when prior ones were not accepted, with each subsequent explanation less plausible than the prior.”

The trial panel concluded that the respondent violated his duty to the public and to the legal profession when he intentionally and knowingly misrepresented to both Lawline and the Oregon Bar the fact that he had attended and successfully completed the CLE courses he had purchased.”

Based upon the reciprocal Oregon discipline (and the facts), the New York opinion suspended the lawyer from the practice of law for one year, beginning on April 14, 2017.  He was also required to “furnish satisfactory proof that during the period of suspension he (1) refrained from practicing or attempting to practice law, (2) fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred and suspended attorneys (see 22 NYCRR 1240.15), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(a), and (4) otherwise properly conducted himself.”

Bottom line:  It should certainly should go without saying that lawyers must never provide false information to the Bar (or at any other time); however, this lawyer apparently very blatantly believed that he could pass under the Bar radar in making the false representations.  He compounded the misconduct by providing “inconsistent testimony” that as “lacking in credibility.”  Not only is this conduct completely unethical, but lawyers should never assume that the Bar will fail to detect false representations such as these.

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

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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Louisiana Disciplinary Board recommends year and one day suspension for lawyer who allegedly offered bribe to a witness and lied about it

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Attorney Disciplinary Board Recommendation of a one year and one day suspension for, inter alia, alleged attempts to bribe a witness and false statements denying the misconduct. The disciplinary opinion is In re: Donald R. Pryor, No: 13-DB-036 (February 5, 2015) and the disciplinary recommendation is online here: https://www.ladb.org/DR/handler.document.aspx?DocID=8353

According to the Recommendation, the Disciplinary Committee found that the following facts were established: “Respondent represented Ms. Winborn, who was charged with simple burglary of an inhabited dwelling in the criminal proceeding State of Louisiana v. Emily Winborn, Case Number 498-791, Sec. A, of the Criminal District Court for the Parish of Orleans. Mr. Bode’s neighbor saw Ms. Winborn exiting Mr. Bode’s house carrying the black camera bag where he kept his gun. When Mr. Bode returned home after the neighbor called him, he discovered that his gun was gone. Ms. Winborn was charged with entering Mr. Bode’s home and stealing a gun. Respondent came to a restaurant Mr. Bode owns with his daughter and offered him $300 to drop the charges against Ms. Winborn. During the first visit Mr. Bode told Respondent that he had found the gun and that he would not drop the charges. The day before Ms. Winborn’s trial, Respondent came to the restaurant again and offered Mr. Bode $500 not to show up in court for Ms. Winborn’s trial. Ms. Winborn was convicted of the crime.” (emphasis supplied)

The Disciplinary Committee found that “(t)his matter came down to credibility. Mr. Bode was a credible witness, with no apparent motive to lie about his interactions with Respondent. For the most part, Respondent admitted to the facts as Mr. Bode related regarding the two visits at the restaurant. The significant divergence was that Respondent contended that the payment was only restitution, and whether Respondent offered $500 to induce Mr. Bode to fail to appear at the trial.”

“(A)fter hearing the testimony, observing the witnesses demeanors, and considering the logical interpretation of the interactions, the Committee finds that Respondent went to visit Mr. Bode at the restaurant where he worked and offered him $300 as payment if he would to agree to drop the charges against Ms. Winborn. Although Respondent calls the $300 an offer of restitution, it clearly was conditioned upon Mr. Bode agreeing to drop the charges. When Mr. Bode refused, he was not paid the ‘restitution.’ Moreover, payment for the loss of the gun was not necessary because Mr. Bode told Respondent that he had found the gun.”

“The second visit, which occurred ten days later and the day before the trial, included an increased offer of $500 as payment for not showing up on the day of trial. Although Respondent attempted to show that Mr. Bode’s memory was failing, the details he did remember – along with a lack of true motive to lie either at trial or the hearing – leads the Committee to believe Mr. Bode’s version of the facts.”

“Thus, clearly the initial $300 was offered not as “restitution,” but strictly as a bribe for Mr. Bode to dismiss the charges against Respondent’s client. In addition, the $500 was offered, on the day before the trial, and as a last resort, so that Mr. Bode would not appear at the trial and thus make it more likely that the charges would be dropped. Respondent’s conduct was a criminal act reflecting adversely on Respondent’s honesty, trustworthiness and fitness as a lawyer, and was conduct prejudicial to the administration of justice. His testimony at the hearing also involved dishonesty, fraud, deceit or misrepresentation.

The Disciplinary Committee recommended that the lawyer be disbarred. The Disciplinary Board adopted the Disciplinary Committee’s finding of fact and conclusions of law and finding that Respondent violated Rules 8.4(a) through (d). After confirming that “(i)t is well-settled that the baseline sanction for misconduct arising out of felony convictions involving bribery is disbarment” and discussing the mitigating and aggravating circumstances, the Disciplinary Board reduced the recommended discipline to a suspension of one year and one day, which would require a showing of rehabilitation.

Bottom line: According to the Louisiana Disciplinary Board Recommendation, this lawyer offered a bribe to a witness to “fail to appear at trial” and engaged in misrepresentation, fraud, deceit, or misrepresentation by denying that he offered the bribe. Notwithstanding these facts, the Board surprisingly reduced the recommended discipline from disbarment to a suspension of one year and one day. The Louisiana Supreme Court will now review the recommendation and issue a final disciplinary opinion.

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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Illinois Disciplinary Review Board recommends 5 month suspension for lawyer who failed to correct false client affidavit and made false statements to court

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois disciplinary Review Board report which recommended a 5 month suspension for a lawyer who was found to have failed to correct his client’s false affidavit claiming sole heirship in an estate matter and made false statements to the court. The opinion is In re: John F. Argoudelis, No. 6200842, Commission No. 2012PR00160 (October 2, 2014) and is online here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11497

According to the opinion, the lawyer agreed to represent a client regarding the administration of the client’s brother’s estate after the brother died in 2008. The client was angry that a great-niece who had cared for the brother during his lifetime was named as a joint tenant on one of the brother’s bank accounts and received about $400,000.00. The client told the lawyer that he was his brother’s only heir and, based on the information he received from the client, the lawyer drafted and filed an “affidavit of heirship” and letters of administration stating that the client was the only surviving heir. The probate court then appointed the client as administrator of the estate. In early 2009, the lawyer learned that the client had lied to him and that the brother had additional heirs; however, he took no steps over the next seventeen months to correct the false affidavit or file an amended affidavit.

At a hearing before the Illinois Hearing Board, the lawyer stated he failed to amend the affidavit because he forgot about it and he said that he also forgot about the existence of other heirs. He further testified that he was more focused on the issue as to whether the client could obtain the money received by the great-niece.

The Hearing Board found that the lawyer’s testimony was not credible since the lawyer had discussed the existence of additional heirs with various individuals; had conducted research regarding distribution law; and had formulated a potential argument to limit the share of the other heirs. The Hearing Board found that the lawyer knowingly failed to correct the false statement in the affidavit and the lawyer did not challenge that finding.

After the client’s appointment as administrator of the estate, the lawyer also used the false information regarding the heirship to obtain information from financial institutions in an attempt to support the client’s claims against the great-niece. The lawyer also sold the brother’s home in 2009 without notifying the other heirs. The lawyer’s mother-in-law was the listing real estate agent and the lawyer was the title agent in that sale. The lawyer received over $9,000.00 in attorney’s fees from the sale, most of which was for fees that the client owed him to pursue the claim against the great-niece.

In aggravation, the Hearing Board found that the lawyer’s conduct caused harm and “jeopardized the interests of the other heirs. His actions prevented the heirs from taking any action with respect to the sale of (the brother’s) house. He took $9,000 in fees from the sales proceeds that arguably should not have been an expense borne by the other heirs. His conduct also harmed his own client who was sanctioned for engaging in deceit.”

“As noted by the Hearing Board, it is unlikely that (the client) would have been sanctioned and ordered to pay $9,000 had (the lawyer) acted appropriately and amended the affidavit of heirship as soon as he learned it was false. Finally, we agree with the Hearing Board that the judicial system was harmed due to (the lawyer’s) conduct. (The lawyer’s) conduct forced the other heirs to take action in court, at additional expense to the heirs and inconvenience to the court, in order to correct (the lawyer’s) wrongdoings.”

“(The lawyer’s) misconduct was serious. When he learned his client had lied to him and that he had included those lies in material statements he made to the court, (the lawyer) had an obligation to stand up to his client and to persuade his client to remedy the false statements. (The lawyer) did not do so, and his repeated failure to do so over such an extended period of time warrants a sanction greater then a censure or a very brief suspension.”

“While no two disciplinary cases are exactly alike, we view this case as more comparable to In re Vitell, 00 CH 95 (Review Bd., Dec. 31, 2003), petition for leave to file exceptions denied, No. M.R. 19303 (May 17, 2004), where the Court imposed a five month suspension upon an attorney who negotiated approximately eighty-eight disability checks after the death of a client so the client’s widow could continue to receive the disability payments. It is a case where a lawyer aids a client without taking into account his professional obligations to act with integrity. Accordingly, we conclude that a five month suspension adequately addresses the seriousness of (the lawyer’s) misconduct, complies with the purposes of discipline, and is consistent with other sanctions.” The Disciplinary Review Board’s findings will now be reviewed by the Illinois Supreme Court.

Bottom line: In addition to failing to correct the materially false affidavit that had been filed with the court, this lawyer was found to have made materially false statements to the court, which harmed the client and were prejudicial to the administration of justice. These allegations would appear to be serious enough to warrant more than a 5 month suspension; however, regardless of the outcome, this case clearly illustrate a lawyer’s serious responsibility to correct false statements and documents which have been submitted to the court as soon as practicable after learning of their falsity.

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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New Jersey lawyer receives three month suspension for “sarcastic and sophomoric” e-mails and statements to opposing counsel and false statements to judge

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New Jersey Supreme Court opinion which suspended a lawyer for 3 months for making outrageous sarcastic and sophomoric statements and e-mails to opposing counsel and making false statements to a judge. The disciplinary opinion is: In the Matter of Jared E. Stolz, Docket No. DRB 13-331 (September 4, 2014) and the opinion is here: http://www.judiciary.state.nj.us/drb/decisions/Stolz_13_331.pdf

According to the opinion, the lawyer admitted making the inappropriate comments in e-mails and a fax, but claimed that his misstatements to the judge were due to his busy schedule which included vacations to the Dominican Republic and Ireland, where he played golf with his father. The Bar Complaint referred to and quoted e-mails and a facsimile that the lawyer sent to opposing counsel in 2009 and 2010 as follows:

“Don’t feel you have to email me daily and let me know just how smart you are.”

“Did you get beat up in school a lot? Because you whine like a little girl.”

“Why don’t you grow a pair?”

“This will acknowledge receipt of your numerous Emails, faxes and letters…. In response thereto, Bla Bla Bla Bla Bla Bla.”

The Bar Complaint also alleged that, after a motion hearing December 2010, the lawyer and opposing counsel had physical contact. Opposing counsel told the lawyer not to touch him and the lawyer replied: “Why would I want to touch a fag like you?”

At a hearing on the disciplinary matter, the lawyer apologized for the statements and e-mails to opposing counsel. “It was not considerate…I have no explanation. I should be disciplined for it.” He called the statements “inexcusable, undignified and “venomous”; however, he denied that he lied to a judge when he said he never received certifications supporting a requested court order. He acknowledged at the hearing that he had received the certifications but said he had not seen them at the time that he made the misstatement because he was frequently out of the office during the period in question and he had to respond to 10 to 15 motions in one day.

According to the lawyer’s testimony:

“I neglected my files, I played too much golf, I went to Punta Cana with my family all within two months. Was it wrong? I don’t know. This is the lifestyle that I’ve chosen, the practice I’ve chosen because I worked at Methfessel & Werbel for 15 years in a cubical [sic] rising to managing director. I didn’t want that anymore. I want to play golf. I do insurance work. I missed it. I screwed up. I had no motivation to lie to the judge about this particular thing.”

“Should I have done things differently? Absolutely. Did I learn a lesson about this? Absolutely. After this, and I got that I now have hired two other attorneys, they review things, I review everything that comes in. Am I going to get lazy again and play more golf? I hope so. But I certainly did not intentionally lie.”

The NJ District Ethics Committee reviewed the matter and found that the lawyer did not make any intentional misrepresentations but that he may have been sloppy and recommended an admonition. The Review Board recommended a three-month suspension. The New Jersey Supreme Court agreed with the Review Board and suspended the lawyer for three months.

According to the opinion: “The sarcastic and sophomoric comments made in the emails and fax set forth in count one demonstrated a failure to treat (opposing counsel) with ‘courtesy and consideration.’” “The wildly inappropriate – indeed, discriminatory – comments (calling opposing counsel a ‘fag’) … also demonstrated a lack of courtesy and consideration.” “Although it may be true, as the DEC observed, that respondent had no reason to lie about the non-receipt of the certifications, his actions were so contrary to what a reasonable attorney would have done, if confronted with the same situation, that his story cannot be believed.”

Bottom line: Lawyers beware: If you are going to “get lazy and play golf”, try to avoid being negligent, making “misstatements” to a judge, making excuses, and making “sophomoric and sarcastic” statements to opposing counsel, especially if you have been practicing for almost 24 years.

Let’s be careful out there.

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

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

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Florida Supreme Court disbars former judge for extensive texting with prosecutor while presiding in murder trial and for “dishonest conduct”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Florida Supreme Court opinion disbarring a lawyer and former judge for extensive texting with a prosecutor at the same time that she was the presiding judge in the prosecutor’s first degree murder trial. The opinion is The Florida Bar v. Ana I. Gardiner, No. SC11-2311 (June 5, 2014) and the Supreme Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2014/sc11-2311.pdf#search=gardiner

According to the opinion, the former judge/lawyer was the presiding judge in State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder case and former prosecutor Howard Scheinberg was the lead prosecutor in the case.

On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder and the former judge/lawyer presided over the penalty phase on April 30 and May 1, 2007, which resulted in a jury recommendation of the death penalty. On August 24, 2007, the former judge/lawyer entered an order sentencing Loureiro to death.

The referee’s report found that on March 23, 2007, several days before the jury returned its guilty verdict, the former judge/lawyer was having dinner at a restaurant when she accidentally encountered the prosecutor. After dinner, the former judge/lawyer, the prosecutor and some others decided to go to a bar and the prosecutor drove to the bar with a law student.

During the drive, the law student raised the appearance of impropriety that might exist if the presiding judge and the lead prosecutor in a pending murder trial socialized while the case was ongoing. The prosecutor was upset by this and left the bar shortly after arriving. The referee found that the former judge/lawyer tried to find out what had upset the prosecutor and spoke with him on the telephone several times during the following weekend.

The trial continued on Monday, March 26, 2007 and the former judge/lawyer did not disclose her interaction with the prosecutor on the record. On March 27, 2007, after the jury returned a guilty verdict, the former judge/lawyer and the prosecutor had a lengthy telephone conversation, wherein the prosecutor told the former judge/lawyer about his discussion with the law student on the way to the bar; however, according to the referee’s report, the former judge/lawyer assured the prosecutor that there was nothing to worry about and that she made a “conscious decision” not to disclose her social interaction and telephone calls.

The referee that the former judge/lawyer and the prosecutor began a “significant personal and emotional relationship” and, between March 23 and August 24, 2007, the day that the former judge/lawyer imposed a sentence of death, she and the prosecutor exchanged 949 cell phone calls and 471 text messages. On the day before, the day of, and the day following the imposition of the death sentence, the former judge/lawyer and the prosecutor communicated by telephone and text 44 times and the former judge/lawyer “deliberately and knowingly chose not to disclose this emotional relationship to the defense, despite her clear duty to do so.”

Loureiro’s attorneys filed a direct appeal to the Florida Supreme Court and soon after, media began reporting allegations that the former judge/lawyer and the prosecutor had met socially at a restaurant and a bar during the murder trial. The Court sent the matter back to the circuit court to consider the communications between the former judge/lawyer and the prosecutor, and determine whether a new trial should be ordered. The Broward County State Attorney’s office hired a special prosecutor to conduct the investigation and, on April 30, 2009, the former judge/lawyer appeared for a deposition. During her deposition testimony, she acknowledged for the first time her ongoing emotional relationship with the prosecutor. The State Attorney’s office eventually agreed to a new trial in the case. At the second trial, Loureiro was convicted and sentenced to life in prison.

In November 2008, the Judicial Qualifications Commission appointed a panel to investigate and determine whether the former judge/lawyer engaged in misconduct. The former judge/lawyer appeared before the panel in late November 2008 and, according to the referee, she “failed to disclose the honest and true nature of her relationship with the prosecutor.” In April 2010, the former judge/lawyer resigned as a circuit judge.

The referee found that the former judge/lawyer’s testimony would “leave any reasonable person with the misimpression that her relationship with (the prosecutor) was merely professional. She did not disclose their emotional relationship or the significant number of personal phone and text communications they exchanged during the penalty phase of the Loureiro trial. She also did not disclose that her relationship with (the prosecutor) continued after the trial and intensified. During the period from March 2008 through August 2008, former judge/lawyer and the prosecutor exchanged more than 3000 phone and text communications. The referee further found that former judge/lawyer’s testimony during the JQC proceedings was a ‘deliberate act of dishonesty and deceitfulness.’”

The referee recommended that former judge/lawyer be found guilty of violating three Florida Bar Rules, 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline) and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) 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).

After considering aggravating and mitigating circumstances, the referee recommended that the former judge/lawyer be suspended from the practice of law for one (1) year and pay the Bar’s costs. The Bar filed a Petition for Review and requested that the former judge/lawyer be disbarred. The Supreme Court opinion discussed the former judge/lawyer’s “dishonest conduct” and the harm it caused at length and “(c)onsidering (the former judge/lawyer’s) dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction.”

Bottom line: As many of you may already know, this was an extremely high profile, media intensive case involving allegations of very serious (and somewhat inexplicable) conduct/misconduct by the presiding judge and prosecutor in a first degree murder trial in south Florida. It is also another disciplinary case wherein the Florida Supreme Court significantly increased a referee’s recommendation discipline, this time from a one (1) year suspension to disbarment.

Let’s 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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D.C lawyer disbarred for, inter alia, filing frivolous motions, failing to appear, introducing confidential records into public record, and fabricating appeal record

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Washington, D.C. Court of Appeals opinion disbarring a lawyer who, inter alia, filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness, failed to file certain motions which prejudiced the client, introduced the client’s confidential medical records into the public record, and sought and received a six month continuance of the client’s trial without her consent. In another matter, the lawyer failed to include fact witnesses in a pretrial statement which caused his client’s case to be dismissed and then fabricated a pretrial statement on appeal. The opinion is In re Ellis S. Frison, Jr., Case No. 13-BG-545 (D.C. Ct. of Appeals 4/24/14) and the opinion is here: http://www.dccourts.gov/internet/documents/13-BG-545.pdf

According to the opinion, the lawyer represented a client in an employment discrimination suit starting in September 2005, until she discharged him in November 2008. During the representation, the lawyer filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness who was hostile to the client, failed to file certain motions which prevented the client from presenting evidence for her retaliation claims, placed the client’s confidential medical records into the public record without justification, and sought and received a six month continuance of the client’s trial without consulting with her or obtaining her consent.

After the client discharged the lawyer in November 2008, he threatened her and refused to release her file to her. She then filed a Bar complaint and initiated an arbitration claim seeking repayment of some of the fees she had paid to the lawyer. The lawyer then submitted inconsistent bills that he had never given the client and which inflated the amount owed under the initial fee agreement.

After an award was entered against the lawyer, he filed a civil suit against her using the same falsified billing records that the arbitrator had rejected. He also submitted similar falsified billing records to the Bankruptcy Court, where he had filed a claim against the client. The opinion states that “(the lawyer) repeatedly submitted (the client’s) confidential medical records subject to attorney-client privilege into the public records in these and other proceedings.

In a second matter, the lawyer represented a client and her minor daughter in a personal injury action. He failed to identify any fact witnesses in the joint pretrial statement and was not able to put any fact witnesses on at trial to establish that the defendant had caused the client’s daughter’s injuries. The court then entered a judgment as a matter of law for the defendant. On appeal, respondent submitted a fabricated joint pretrial statement that included fact witnesses, and told the appeals court (the same court that issued this opinion) at oral argument that he had sent the fabricated document to opposing counsel prior to trial.

Bottom line: This lawyer certainly stretched the limit of how many Bar rules can be found to have been violated in a single Bar discipline matter. The misconduct also occurred at the trial and appellate levels and, amazingly, the lawyer fabricated a document in an appeal before the appellate court which determines discipline in D.C. Bar cases.

Let’s 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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Attorney/client confidentiality, Attorney/client privilege and confidentiality, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements in response to Bar complaint, Lawyer false testimony, Lawyer lack of competence, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions, Privilege

Iowa lawyer who failed to timely serve discovery requests and then covered up by creating false certificates of service is suspended for 6 months

Hello and welcome to this Ethics Alert blog which will discuss the recent Iowa Supreme Court opinion suspending a lawyer for 6 months for engaging in misconduct by covering up his failure to timely serve discovery requests by creating false certificates of service to make it appear that they were timely served. The disciplinary opinion is Iowa Supreme Court Attorney Disciplinary Board v. Jeffrey K. McGinness, Case No. 13–1213 (March 21, 2014) and the disciplinary opinion is here: http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20140321/13-1213.pdf?search=Jeff+McGinness#_1

According to the opinion, the lawyer represented a plaintiff in a civil action in 2012 and his client’s deposition had been scheduled for June 18, 2012. The facts were undisputed and are as follows:

“Five days before the scheduled deposition, (the lawyer) realized he had not served discovery requests on opposing counsel. (The lawyer) believed his failure to obtain responses from the opposing party prior to his client’s deposition was a strategic mistake. To cure his oversight, (the lawyer) embarked on a course of dishonest conduct he will regret for the remainder of his legal career. Instead of seeking an accommodation from opposing counsel or simply proceeding with the scheduled deposition, he decided to lie about his failure to serve discovery. (The lawyer) began by emailing opposing counsel demanding responses to the discovery requests by the end of the next day ‘to avoid the need to reschedule the deposition.’ When opposing counsel responded that he had not received any discovery requests from the lawyer, he replied via an email to which he attached two discovery requests he had purportedly served March 21, 2012. The discovery requests contained the lawyer’s signature as well as purported certificates of service indicating the requests had been served March 21 by U.S. Mail. The certificates of service appeared to have been signed by (the lawyer’s) administrative assistant.” (emphasis supplied).
The opposing attorney was suspicious so he examined electronic data (metadata) embedded in the discovery documents and determined the documents had been created in June 2012. He hired a handwriting expert and, after comparing the certificates of service on the discovery documents e-mailed by the lawyer with the certificate of service on the response to the discovery requests, the expert concluded the certificates of service were photocopies of the previous documents.

The opposing attorney confronted the lawyer and, instead of admitting his fabrication (according to the opinion, he did not “fess up”), he “embellished” and said that he explicitly recalled preparing and signing the discovery requests at the same time that he responded to opposing attorney’s discovery requests and that he may have served them the same day. He also stated that since he did not sign the certificate of service, he could not speak to the allegation of identical signatures and that his secretary, who signs many certificates of service each week, had no recollection of signing it.

Understandably, the opposing attorney then filed a motion for sanctions and, “(o)nce again, (the lawyer) embellished instead of fessing up. (The lawyer) filed a response with the district court in which he maintained neither he nor his assistant photocopied nor duplicated previously used certificates of service. (The lawyer) added a new layer to his fraudulent conduct by hiring an expert at his own expense to defend the position he knew to be false. (He) represented to the district court that his own expert found the signatures were not identical. Finally, (the lawyer) attempted to discredit opposing counsel’s theory that he was motivated by a desire to delay the deposition.” (emphasis supplied)

The lawyer then advised his client about the pending sanctions motion and stated in an e-mail that opposing counsel had alleged that he had fabricated certificates of service dates in an attempt to delay the client’s deposition, that he did “not take these allegations lightly”, and that he had discussed the motion with opposing counsel. He also told the client he had hired, at his own expense, “a forensic document examiner who is willing to testify that the certificates are not fabricated.”

It gets better: “The court scheduled a hearing on the sanctions motion. At the hearing, (the lawyer) once again chose not only to maintain the lie, but to embellish. He insisted the certificates of service were not fabrications. He also attacked the conclusions of opposing counsel’s handwriting expert. After the district court expressed its opinion to (the lawyer) it did not think it needed a handwriting expert to see the fabricated certificates of service matched the one on the response to opposing counsel’s discovery requests, (the lawyer) asserted there was no evidence to explain why the certificates of service were identical. (The lawyer) acknowledged his administrative assistant’s signature was on the certificates of service, but stressed that she signs a significant number of documents each week. He further stressed that he has multiple administrative assistants and that any of them could have prepared the documents.” (emphasis supplied).

The trial judge rejected the lawyer’s “now elaborate deceit” and found that he had “intentionally and knowingly affixed false certificates of service to discovery requests to cause unnecessary delay in the progression of the litigation. The (judge) further noted, ‘(the lawyer’s) behavior is so shocking and egregious that it is hard even to know what to say about it.’” The district court also stated that “(i)t is deeply disappointing to find that a member of the bar has engaged in such elaborate, calculated, and premeditated deceit.” The court ordered the lawyer to pay $5,152.00 to opposing counsel and $2,348.00 to the Iowa Judicial Branch and then forwarded a copy of the sanctions order to the state court administrator. After receiving the district court’s order, (the lawyer) disclosed his conduct to his law firm and was told that he must report his actions to the disciplinary authorities and that “he had betrayed their trust. At this point, (the lawyer) voluntarily withdrew from the firm and began a solo practice in Iowa City; however, he did not self-report.

After receiving the complaint/sanctions order of the court, the disciplinary board sent it to the lawyer. The lawyer responded and admitted that had he engaged in the misconduct and stated that he had “extreme disappointment” in himself and recognized that his actions reflected “a severe lapse in judgment.” He said that there was no excuse, and, in falsifying the certificates of service, he was “motivated by a misguided loyalty and attempt to protect a client” and that instead he should have admitted the oversight and requested an extension. He also noted his belief that submitting his client for a deposition without the benefit of the discovery responses could have compromised his client’s case. Finally, he noted that while it would take significant time to regain the lost trust of his friends and law partners, he believed the disciplinary process and the process of mending damaged relationships would make him a better person and attorney.

The board then filed a complaint alleging that the lawyer engaged in misconduct related to lack of candor, dishonesty, deceit, misrepresentation, or fraud, and conduct prejudicial to the administration of justice. At the disciplinary hearing, the lawyer admitted to the misconduct and expressed remorse and presented testimony and affidavits from a senior partner in his former firm, an administrator at the University of Iowa College of Law, a family friend, and other lawyers as character witnesses and offered evidence showing he had served on a local school board, local municipal boards, and in various organizations and had coached wrestling, soccer, and baseball.

The disciplinary commission found that the lawyer engaged in misconduct and violated Iowa Bar rules related to lack of candor, dishonesty, deceit, misrepresentation, and/or fraud, and conduct prejudicial to the administration of justice and found multiple aggravating factors, including the failure to self-report, repeated failure to tell the truth, and failure to turn to the numerous friends and colleagues comprising his support system for advice, and mitigating factors, including the lawyer’s sincere and straightforward admission to the commission, lack of prior discipline, and community service. The commission recommended a six month suspension, which the opinion approved.

Bottom line: “Oh what a tangled web we weave when first we practice to deceive.”- Sir Walter Scott. This case illustrates how a lawyer can seriously compound a mistake and turn it into an elaborate web of deceit and misrepresentation which resulted in serious allegations and sanctions against. As I have said many times, if a lawyer makes a mistake, it is always better a admit it and accept the consequences (the Nixon rule) instead of potentially making things exponentially worse by covering it up. This is an extreme case; however, if it had been in Florida, the sanctions may have been much more severe and possibly disbarment.

Be careful out there!

Disclaimer: this e-mail is not an advertisement and does not contain any legal advice and the comments 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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