Category Archives: Lawyer filing frivolous pleading

Proposed Florida Bar rule initiated by Florida lawyer would make court finding of frivolousness “conclusive determination” of rule violation

Hello everyone and welcome to this Ethics Alert which will discuss the Petition initiated by a Florida lawyer to amend the Bar rules and provide that a court determination that an action violates F.S. §57.105, Florida appellate Rule 9.410, or Rule 11, Federal Rules of Civil Procedure “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  The Florida Bar published a Notice in the Florida Bar News that the petition will be filed on November 6, 2017 and members may comment on the Petition after it is filed.  The Bar Notice is here: 10-1-17 Bar News Notice of Filing Petition to Amend Rule.

The proposed rule revision would amend Florida Bar Rule 3-4.3 (misconduct or minor misconduct), by adding a section on frivolous actions which would provide if any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  Upon being notified of the finding, The Florida Bar would open a file, which would be sent to the grievance committee for review.

The proposed rule also provides that, unless there are aggravating circumstances, the referee or grievance committee considering the complaint can resolve the matter with an admonishment or referral of the lawyer to the Bar’s diversion program (lawyers would be eligible for diversion once every five years under the proposed rule).

The proposed rule would also require a lawyer who has had an appellate ruling that the a lawyer has violated the rules or state law on frivolous actions to notify the Bar within 10 days with copies to opposing counsel. Bar counsel would then docket the case “and The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”

The proposal would also amend the comment to Rule 4-3.1 to refer to the amendment to Rule 3-4.3. The comment to Rule 3-4.3 also provides that, “A lawyer shall not use any funds held in his trust account for payment of any personal obligation imposed upon the lawyer or the lawyer’s law firm as to sanctions pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule.”

The Florida Bar Rules allow members to directly propose amendments to Bar rules if the there is a petition filed with the Supreme Court signed by 50 Bar members.  This petition was signed by 55 Bar members.  The Board of Governors’ Disciplinary Procedure Committee (DPC) will review the proposed petition and rule amendments and will have a special meeting to discuss it.  A report by the DPC on the petition is expected at the Dec. 8, 2017 BOG meeting.

Bottom line:  This is rare member initiated petition to amend the Florida Bar Rules.  The amendment certainly appears to be well intended; however, since an order finding that a claim or defense is frivolous does not involve a criminal conviction, I am very concerned that the proposed rule that would make an order finding a frivolous filing by an appellate court on a civil matter “a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  I believe (and continue to believe) that a lawyer should be able to challenge such a court order since, among other things, the action and parties are different and the evidentiary requirements underlying such an order are not necessarily the same as those required for the Bar to prove a violation of the Bar rules.  In addition, the courts have inherent authority to sanction lawyers for frivolous filings as well as under the relevant statutes and court rules.

According to the Bar’s October 1, 2017 Notice in the Florida Bar News:

“Members who desire to comment on this proposed amendment may do so within 30 days of the filing of the above-referenced petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar and Thomas O. Wells, Esq. Rule 1-12.1 and Rule 3-7.15 of the Rules Regulating The Florida Bar govern these proceedings.”

Stay tuned…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.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney discipline, Attorney Ethics, Florida Bar, Florida Bar - petition to make finding of frivolous filing conclusive proof of Bar rule violation, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer filing frivolous pleading, Lawyer Professionalism, Lawyer sanctions, Lawyer sanctions for frivolous filings

Illinois lawyer who lied about mother’s death and health problems to justify discovery delays and the continuance of a hearing consents to disbarment

Hello everyone and welcome to this Ethics Alert which will discuss the recent motion for revocation/disbarment filed by an Illinois lawyer in response to allegations that he lied about his mother’s death and his own health to try to justify discovery delays and support a continuance of a hearing in two separate cases.  The case is In the Matter of: Keith Joseph Hays, Supreme Court No. M.R.27422 Commission No. 2014PR00065.  The lawyer resigned from the Indiana Bar in April 2015.  The lawyer filed a motion requesting that his name be stricken from the list of Illinois Attorneys and the link to the Illinois Bar Statement of Charges and is here:  http://www.iardc.org/P14PR0065OC.html

According to the Statement of Charges, the lawyer lied about the reasons for his delayed responses to discovery and request to continue a hearing in two Indiana cases, and made settlement offers without authorization in a third case.

In one case, the lawyer justified his delays in responding to discovery requests by claiming that his mother had been “killed in a violent car accident in the state of Colorado.”  The lawyer also said that she died in “the fire and smoke inhalation from the resulting conflagration,” and that he was “left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted.”  The lawyer’s mother not been involved in a car accident or died.

In another case, the lawyer filed an emergency motion to continue a hearing and claimed that he had been diagnosed with “double pneumonia” and went to an emergency room; however, the lawyer did not actually have pneumonia and, incredibly, he billed his client for time that he spent working on the case when he was supposedly incapacitated.

The lawyer admitted to the following facts:

“In 2011, Respondent represented Staples the Office Superstore East (a subsidiary of Staples, Inc.; hereafter, “Staples”), the defendant in a personal injury action filed in Indiana state court by Max Jackson (“Jackson”). In the course of discovery, Jackson filed a motion for sanctions alleging that Respondent’s client, Staples, had failed to fully respond to a request for production of documents and interrogatories. Respondent filed a response in which he claimed, in part, that his mother had been “killed in a violent car accident in the state of Colorado,” that she perished from “the fire and smoke inhalation from the resulting conflagration,” and that Respondent “was left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted.” Respondent’s statements were false, and he knew they were false, since his mother had neither died nor been involved in a car accident, and Respondent had not been “left scrambling between Indiana, Colorado and Idaho” to resolve his mother’s affairs.”

“In 2011, Respondent represented Reed & Company, P.C. (“Reed”), the defendant in a civil lawsuit filed in Indiana state court by Wabash Center, Inc. (“Wabash”). After Wabash filed a motion for partial summary judgment, the court set the matter for hearing on that motion. On the date of the scheduled hearing, Respondent filed an emergency motion requesting that the hearing be continued, based on his representation that the day before, he had been diagnosed with “double pneumonia” and sent to the emergency room. Respondent’s statements were false, and Respondent knew they were false, as Respondent had not been sent to the emergency room with pneumonia, and in fact, he had billed his client Reed for time spent preparing a summary judgment motion on Reed’s behalf during the time period that he purportedly was incapacitated.”

Bottom line: According to the facts to which the lawyer admitted, he made some incredible false statements which could easily be refuted, and his lies were ultimately discovered.  I’m not doctor, but there would appear to be some serious psychological issues underlying this conduct.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, 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 filing frivolous pleading, Lawyer misrepresentation, Lawyer resignation in lieu of discipline/disbarment, Lawyer sanctions

Florida Supreme Court rejects recommended 91 day suspension and imposes 3 year suspension on lawyer for filing frivolous pleading and making false criminal allegations

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Florida Supreme Court which rejected a referee’s recommended 91 day suspension and imposed a one (3) year suspension for the lawyer’s misconduct in filing frivolous pleading and false criminal allegations against opposing party who obtained a sanctions judgment against him. The opinion is The Florida Bar v. Committe, No. SC11-468 (Fla. April 3, 2014) and the full opinion is at: http://www.floridasupremecourt.org/decisions/2014/sc11-468.pdf.

According to the opinion, in March 2011, The Florida Bar filed a complaint against the lawyer alleging the following facts:

“In December 2002, Committe filed a civil lawsuit on behalf of a client against the defendant. The complaint alleged two counts, one for malicious or tortious interference with a business relationship, and one for slander. Counsel for the defendant filed a motion for summary judgment. The circuit court held a hearing on the motion and, in June 2004, issued a ‘Final Summary Judgment’ order in favor of the defendant. In relevant part, the circuit court held that there was no admissible evidence upon which a cause of action for either count alleged in Committe’s complaint could stand. The court further held that even if certain evidence would be admissible over a hearsay objection, there was nothing to indicate that any of the defendant’s statements were false or malicious.

The circuit court reserved jurisdiction to rule on the defendant’s motion for attorney’s fees and costs. Committe did not appeal the Final Summary Judgment order at that time. In October 2004, the circuit court held a hearing on the defendant’s motion for attorney’s fees. Following the hearing, on October 29, 2004, the court entered an Order on Defendant’s Motion for Attorney Fees and Costs. In the order, the court held that Committe and his client knew or should have known that the claims asserted in their complaint were not supported by the material facts; would not be supported by the application of then-existing law to those facts; and were frivolous.

Accordingly, the circuit court awarded the defendant $13,000.00, to be paid in equal shares by Committe and his client. Subsequently, in January 2005, the circuit court entered a “Final Judgment” in the civil case. Committe appealed the order to the First District Court of Appeal. In February 2007, the district court per curiam affirmed the circuit court’s ruling. Following the appeal, the defendant, who was by then not represented by an attorney, sent Committe two letters, one in December 2007 and one in May 2008, seeking payment of the attorney’s fees and costs awarded to her in the circuit court’s October 2004 order. Several days after receiving her May 2008 letter, Committe wrote to the United States Attorney, accusing the defendant of attempting to extort money from him and requesting that she be criminally prosecuted.”

The referee’s report recommended that the lawyer be found guilty of violating Rules 4-3.4(g) (present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter) and 4-8.4(d) (engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) and that he gave false testimony during the disciplinary hearing; however, he found the lawyer not guilty of violating Rules 4-3.1 (meritorious claims and contentions) and 4-3.4(c) (knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. The referee recommended that the lawyer be suspended for ninety-one (91) days.

In July 2013, the Court issued an order immediately suspending the lawyer and directing him to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction imposed. The opinion approved the referee’s findings of fact and that the lawyer be found guilty; however, the opinion found him guilty of violating Bar Rules 4-3.1 and 4-3.4(c) and also disapproved the referee’s recommended discipline. According to the opinion,

“In the case presented here, Committe filed a frivolous and meritless lawsuit against the defendant, wasting both her time and resources and those of the court system. The circuit court dismissed the suit and ordered Committe to pay a portion of the defendant’s attorney’s fees and costs; however, Committe has refused to comply with the order for years. When the defendant attempted to collect the money she was owed, Committe reported her to the United States Attorney for alleged extortion.

Considering these events together, it is clear that Committe’s misconduct is serious and egregious, and that it caused harm to both the defendant and the court system, warranting a severe sanction. We have also considered the significant aggravating factors found by the referee: a disciplinary history; a pattern of misconduct; multiple offenses; submission of false evidence or statements during the disciplinary process; vulnerability of the victim; and substantial experience in the practice of law.

Committe’s conduct in this case, considered together with his disciplinary history, his false statements to the referee, and the other aggravating factors, clearly demonstrates that he is abusive of the legal process. We conclude that this type of serious misconduct and unethical behavior warrants a more severe sanction than that recommended by the referee. Accordingly, we disapprove the referee’s recommendation, and instead suspend Committe for three years.

Bottom line: This case illustrates how a lawyer can get into a serious ethical quandary by filing a lawsuit which is apparently not supported by “admissible evidence upon which a cause of action…could stand”, then more seriously compounding his potential culpability by apparently refusing to pay the judgment that was rendered against him for the frivolous filing and then, astoundingly, by writing to the U.S. Attorney “accusing the defendant (the opposing party) of attempting to extort money from him and “requesting that she be criminally prosecuted” when she tried to collect on the judgment almost 4 years later.

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, dishonesty, Florida Bar, Florida Lawyer Ethics and Professionalism, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer filing frivolous pleading, Lawyer misrepresentation, Lawyer sanctions