Category Archives: Lawyer lack of communication with client

Florida lawyer permanently disbarred for, inter alia, soliciting and making misrepresentations on website and representing clients in other states

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Florida Supreme Court Order approving the Report of Referee and permanently disbarring a Florida lawyer for soliciting over the internet and representing clients in states in which she was not admitted, lack of diligence and communication, making false statements, and failing to respond to the allegations.  The case is: The Florida Bar v. Alma C. Defillo, Case No. SC15-593 (August 28, 2015).  The Order is here: http://www.floridabar.org/DIVADM/ME/MPDisAct.nsf/DISACTVIEW/4C69AF1FB7B03A1285257EB4000922AC/$FILE/_27.PDF.

According to the Report of Referee, which is attached, The Florida Bar filed a 6 count Complaint against the lawyer and a Request for Admissions on March 31, 2015.  The lawyer failed to respond and the referee entered a default and “the matters pled in the Bar’s Complaint became the substantive facts in this case by operation of law.”

“(R)espondent, despite being only a member of The Florida Bar, also maintained offices in North and South Carolina given her immigration practice. As a result of respondent’s significant misconduct in South Carolina (detailed below), the South Carolina Supreme Court permanently debarred respondent in that state. In order to protect the interests of respondent’s South Carolina clients, the South Carolina Supreme Court appointed a Receiver. The Florida Bar was able to track down some of respondent’s files and has been cooperating with the Receiver to provide the files of respondent’s South Carolina clients that are in the Bar’s possession.”

The Report states that the lawyer represented various clients who were residents of North Carolina and South Carolina in immigration/INS matters.  The clients complained that the lawyer failed to communicate with them, lacked diligence, and did not perform any services on their behalf.  In addition, according to the Report:

On November 1, 2013, the Office of Disciplinary Counsel (“ODC”) of the Supreme Court of South Carolina charged respondent with violations of their Rules.

Although respondent is not admitted in South Carolina, she maintained a law office, advertised, and offered legal services there.

The ODC charged respondent with writing to state judicial officers regarding her South Carolina clients’ criminal cases in violation of Rules 7.1 and 7.5(a)&(d) South Carolina Rules of Professional Conduct (“SCRPC”) and Rule 407 South Carolina Appellate Court Rules (“CSACR”).

Respondent’s letterhead and advertisements also failed to clarify that she was not admitted in South Carolina in violation of  Rules 5.5(b)(2), 7.1, and 7.5(a)&(b) SCRPC.

Similarly respondent’s website, available to residents of South Carolina and referencing her office in Greenville, contained misrepresentations and omitted facts necessary to make the contents considered as a whole not materially misleading in violation of Rule 7.1(a) SCRPC by failing to state that she was not admitted in South Carolina.

Additionally, respondent’s website advertised her experience in both criminal and family matters and offered to “analyze the facts of [her prospective client’s] cases by applying current … State Laws” in violation of Rules 5.5(b)(2) and 7.1(a) SCRPC.

Respondent’s website misleadingly referred to “lawyers” and “attorneys” when in fact, respondent was a sole practitioner in violation of Rules 7.1(a) and 7.5(d) SCRPC.

Respondent’s website compared her services to other lawyers in a way that could not be factually substantiated in violation of Rule 7.1(c) SCRPC.

Respondent’s website used “specialist” and “expert” in violation of Rule 7.4(b) SCRPC despite not being certified by the Supreme Court of South Carolina.

Respondent’s business cards and other print advertisements, regarding her Greenville office, failed to disclose that respondent was not admitted in South Carolina in violation of Rules 5.5(b)(2) and 7.1(a) SCRPC.

Respondent’s radio advertisements, disseminated in South Carolina, failed to disclose that respondent was not admitted in South Carolina in violation of Rules 5.5(b)(2) and 7.1(a) SCRPC.

Respondent, despite initially cooperating with the investigation in South Carolina, then failed to respond in violation of Rule 8.1(b) SCRPC.

Based on respondent’s failure to respond, the ODC noticed respondent for an interview. Respondent failed to appear in violation of 8.1(b) SCRPC.

In respondent’s initial response to ODC, she misrepresented that her practice was limited to immigration law and that she had not communicated otherwise in any way in violation of Rule 7(a) Rules for Lawyer Disciplinary Enforcement (“RLDE”).

By virtue of the foregoing respondent also violated Rules 7(a)(1)&(3) RLDE and Rules 407 & 413 SCACR by violating or attempting to violate the Rules of Professional Conduct and failing to respond to a lawful demand from a disciplinary authority.

On July 29, 2014, based on the charges filed by ODC, the Supreme Court of South Carolina entered its Order permanently debarring respondent from seeking any form of admission to practice in South Carolina and from advertising or soliciting business in South Carolina without first seeking leave of that Court. The Court also ordered that respondent complete the South Carolina Bar’s Legal Ethics and Practice Program Ethics School and Advertising Workshop before asking leave of the Court to practice or advertise.

The Report further states:  “Respondent is currently serving a one-year suspension in SC14-1419, TFB File Nos. 2012-00,321(4B) and 2013-00,832(4B). Additionally, Respondent was recently held in contempt for her failure to respond to the two initial grievances herein and was therefore also suspended indefinitely in SC15-293, TFB File No. 2015-00,468(4B).”

After considering aggravating and mitigating circumstances, case law, and the Florida Standards for Lawyer Sanctions, the referee recommended permanent disbarment and payment of the Bar’s costs.  The lawyer did not request review of the recommendation and the Supreme Court adopted the Report of Referee and permanently disbarred the lawyer.  The Supreme Court approved the Report of Referee and permanently disbarred the lawyer.

The lawyer was also permanently barred from practicing law in South Carolina in 2014 and my blog on that case here: https://jcorsmeier.wordpress.com/2014/08/18/south-carolina-supreme-court-prohibits-another-florida-lawyer-from-practicing-law-who-solicited-over-the-internet-made-misrepresentations-and-represented-clients/

Bottom line: This lawyer was advertising for clients in immigration matters on the internet and made misrepresentations regarding the scope and location of her practice.  The lawyer also was negligent, failed to communicate with clients, and failed to perform services.  This shows how the internet can be misused by a lawyer to obtain clients in other states in which the lawyer is not admitted to practice.

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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Colorado lawyer suspended for 18 months for disclosing confidential information in response to client internet criticism

Hello everyone and welcome to this Ethics Alert which will discuss the recent disciplinary opinion suspending a Colorado lawyer for 18 months for disclosing confidential client information in response to their internet criticism.  The disciplinary opinion is People v. James C. Underhill Jr. Case No. 15PDJ040 (consolidated with 15PDJ044 and 15PDJ059) (August 12, 2015) and is here: http://www.coloradosupremecourt.us/PDJ/ConditionalAdmissions/Underhill,%20Conditional%20Admission%20of%20Misconduct,%2015PDJ040,%2015PDJ044,%2015PDJ059,%208-12-15.pdf.

The opinion approved the conditional admission of misconduct and suspended the lawyer from the practice of law for eighteen (18) months which will begin after his current suspension ends.  The lawyer admitted that he disclosed client confidential information in response to clients’ internet complaints about his fees or services in two client matters.

In the first matter, a married couple retained the lawyer to assist with the husband’s ongoing post-dissolution dispute with his former spouse. The clients could not pay all the fees up and the lawyer verbally agreed to monthly payments, with an initial $1,000.00 deposit; however, “he did not explain that he reserved the right to demand full payment at his sole discretion.  He collected an additional $200.00 for a ‘filing fee,’ though he took no action that required such a fee.”

The lawyer also “failed to adequately communicate with the clients and did not inform them of opposing counsel’s objections to their discovery responses. Underhill later threatened to withdraw in two business days unless the clients made full payment of all fees. When the couple terminated the representation, (lawyer) declined to refund the $200.00 ‘filing fee.’”

The clients posted complaints about the lawyer on two different websites. The lawyer responded with “internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.”  The lawyer then sued the couple for defamation and communicated directly with them, although “he knew that the couple had retained counsel, (lawyer) communicated with them ex parte on several occasions, even though their counsel repeatedly implored him not to do so.”  When that suit was dismissed, the lawyer filed a second defamation action in a different court, “alleging without adequate factual basis that the couple had made other defamatory internet postings.”

In a second matter, the lawyer represented a couple  to renegotiate a lease for their business. The couple eventually became dissatisfied with the lawyer’s services and terminated him. The clients posted a complaint about the lawyer on the Better Business Bureau’s website. The lawyer responded by providing an attorney-client communication and making “uncomplimentary observations about and accusations against the couple based on confidential information related to the representation.”

The lawyer’s 18 month suspension will begin after he serves a current suspension of 3 months and one day for communicating directly with his former clients who were represented by counsel while on disciplinary probation. That disciplinary order is here: http://www.coloradosupremecourt.us/PDJ/OpinionsAndSummaries/Underhill,%20Revocation%20of%20Probation,%2012PDJ071,%206-29-15.pdf.

The suspension takes effect on October 1, 2015.  After the suspension period, he must apply for reinstatement and prove by clear and convincing evidence that he has been rehabilitated, that he has complied with the disciplinary orders and rules, and that he is fit to practice law. 

The lawyer was also suspended for one year and one day for trust account violations in 2012.  That disciplinary order is here:  http://www.coloradosupremecourt.com/PDJ/ConditionalAdmissions/Underhill,%20Conditional%20Admission%20of%20Misconduct,%2012PDJ071,%2010-1-12.pdf

According to the Colorado Supreme Court’s website, the opinions of the Presiding Disciplinary Judge are final orders and may be appealed to the Supreme Court; however, since the opinion approved an agreed conditional admission of misconduct, it will not be appealed.

Bottom line: This is yet another cautionary tale for lawyers practicing in the digital age.  As all lawyers know, attorney/client confidences must be preserved unless the client authorizes disclosure (preferably be in writing) or there is an exception to the confidentiality rule, such as defending a Bar complaint or malpractice action.  A client’s criticism of the lawyer on internet websites is certainly not one of those exceptions and revealing confidential information in response to criticism on those platforms is a violation of the Bar rules.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Attorney/client privilege and confidentiality, Communication with clients, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer derogatory remarks, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer revealing client confidential information on internet, Lawyer sanctions, Lawyer technology competence

Illinois Disciplinary Board upholds lawyer’s 6 month suspension for, inter alia, keeping fees and “indefensibly outrageous” statements

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Disciplinary Review Board report which recommended a 6 month suspension (with no automatic reinstatement) of a lawyer who failed to perform legal services for which he was retained, failed to return unearned fees, failed to communicate with clients and failed to reduce fee agreements to writing, and making “indefensibly outrageous” statements about lawyers and a court deputy in litigation cases.  The case is In the Matter of: David Alan Novoselsky, Commission No. 2011PR00043, SC No. 2069881 (April 10, 2015).  The link to the Board recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11701

The Review Board of the Illinois Attorney Registration and Disciplinary Commission upheld a Hearing Board’s findings that the lawyer failed to perform legal services for which he was retained, failed to return unearned fees, failed to communicate with clients, and failed to reduce fee agreements to writing.  According to the Board’s report, the lawyer also called a female lawyer derogatory names, including “b—-,’ ‘‘asshole,” “slut,” “c—,” “pervert,” “whore” and “child molester”.  He called another lawyer an “idiot” and a “cokehead,” and he also called a deputy a “dumbbell” after she asked him to lower his voice.

“(The lawyer) denied making some of the statements and could not remember if he had made other statements. However, he admitted making several of the statements.  He often claimed he was provoked by undocumented personal attacks against him or claimed that the parties were “ribbing” each other, although witnesses confirmed (a witness’s) testimony that she did not provoke, react, or respond to these statements.”  “His attacks on opposing counsel and a court deputy displayed an utter disregard for the integrity of the courts…(w)hile he may still believe that he was provoked, the record indicates otherwise.  We find his conduct to be indefensibly outrageous.”

“Because we find (the lawyer’s) actions to be egregious and because respondent lacks any remorse or understanding of his misconduct, we recommend to the court that he be suspended for six months and until further order of the court.”  The hearing board had recommended a six-month suspension with automatic reinstatement.  The review board also recommended that the lawyer be ordered to return $30,000 in restitution of unearned fees.

The Board noted in mitigation that the lawyer had practiced law for 40 years without being disciplined, he had performed pro bono work, and had been active in bar associations.  There was no mention of any other mitigation, such as substance abuse or other personal issues.

Bottom line:  This case involved an Illinois lawyer who apparently went off the deep end and made outrageous derogatory statements in highly contested litigation cases.  He also apparently kept unearned fees, failed to perform legal services, failed to obtain written fee agreements, and failed to communicate with clients.  The Illinois Supreme Court will review the recommendation and it will be interesting to see if the Court agrees or increases the recommended sanction.  Stay tuned…

Be careful out there (and of course don’t do this).

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 joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer improper fees, Lawyer lack of communication with client, Lawyer sanctions, Lawyer unreasonable fee

Indiana Supreme Court imposes public reprimand on lawyer who required non-compete provision in associate’s employment agreement

Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion which imposed a public reprimand on lawyer who required an associate to agree to a non-compete provision in an employment agreement and sent letters to the associate’s clients stating that he would be taking over the representation; however, he did not attempt to enforce the provision. The disciplinary opinion is In the Matter of: J. Frank Hanley II, Case No. 49S00-1410-DI-616 (Ind. SC 11/6/14). The opinion here: http://www.in.gov/judiciary/files/order-discipline-2014-49s00-1410-di-616.pdf

According to the opinion, the lawyer’s law practice was primarily in social security disability law. He hired an associate in 2006 to work in his law office pursuant to an employment agreement which included a non-compete provision prohibiting the associate from practicing Social Security disability law for two years if his employment was terminated.

The lawyer terminated the associate in 2013 and sent letters to the clients whose matters the associate was handling advising the clients that the associate was no longer working at the firm and that he would be taking over their representation. The lawyer also enclosed Appointment of Representative forms for the clients to complete to permit him to replace the associate as the clients’ representative before the Social Security Administration.

Notwithstanding the letters, the associate continued to practice social security disability law after leaving the law firm, and at least two of the associate’s existing clients chose to keep him as their lawyer. The lawyer did not attempt to enforce the non-compete provision and, after the Bar complaints were filed against him, the lawyer provided the associate with the client files.

Bottom line: This lawyer violated Indiana Bar Rule 5.6(a) by requiring the associate to agree to limit his practice after he was no longer with the firm as a condition of his employment agreement. This type of agreement limiting a lawyer’s practice is prohibited in most, if not all states and other jurisdictions.

Florida Bar Rule 4-5.6(a) states:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement…

Lawyers should be aware of this Bar rule when hiring associates and should not include a non-compete clause.

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

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

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer Professionalism, Lawyer requiring non-compete restrictive clause in employment agreement, lawyer restricting right to practice, Lawyer sanctions

Ethics Alert – Iowa Supreme Court reprimands lawyer who billed corporate client for costs of sanctions which “resulted from his own lack of diligence and communication”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Iowa Supreme Court opinion which adopted a disciplinary report and imposed a reprimand on a lawyer who billed his corporate client for costs of attorney’s fee sanctions which “resulted from his own lack of diligence and communication”. The disciplinary opinion is: Iowa Supreme Court Attorney Discipline Board v. Cameron Davidson, Case No. 14-0878 (August 18, 2014). The disciplinary opinion is online here: http://www.abajournal.com/images/main_images/Davidson.pdf and here: https://www.iacourtcommissions.org/ViewLawyer.do?id=2704

According to the court opinion and discipline report, the lawyer represented Deere & Co. as a defendant in defending an employment discrimination lawsuit filed in federal court. The plaintiff was a former Deere employee who was terminated for allegedly violating Deere’s employee travel expense policy; however, she claimed that the termination was a result of age discrimination.

The lawyer responded to the plaintiff’s interrogatories and request for production requesting the names of all Deere employees who were investigated during the same time period (2005-2012) for travel expense violations and identified 4 employees; however, he did not provide the requested birth dates. The plaintiff’s lawyer filed a motion to compel which was granted and attorney’s fees sanctions of $700.00 were imposed. The lawyer ultimately self-reported and stated that the client had informed him it wanted to object to the plaintiff’s discovery requests, which resulted in the initial discovery dispute and the $700.00 sanction. The lawyer stated “I believed that I had discussed this matter with my client, however, my file does not reflect that I sent the motion (to compel and for sanctions) or the order to the client.”

The plaintiff filed a second motion to compel and for sanctions on another discovery issue. The lawyer stated that he was unsure how to respond to the second motion and admitted that he “ultimately missed the deadline to file a resistance or a reply.” The court granted the second Motion to Compel and imposed a sanction of $1,750.00 in attorney’s fees. “I again failed to send the motion or the court’s order to the client, which was not aware of the seriousness of the discovery dispute.”

The plaintiff filed a third motion to compel and for sanctions, which was also granted and sanctions of $1,050.00 in attorney’s fees were imposed. The lawyer also failed to send the plaintiff’s third motion and the court order imposing sanctions to the client. According to the report: “Despite these Orders (the lawyer) continued to delay providing complete interrogatory answers (and) failed to arrange for two of the employees to be deposed, as requested by the plaintiff.”

The lawyer billed the client for the costs of all three sanctions. In the billings, the lawyer called the first $700.00 sanction “Miscellaneous; Penalty on Discovery; Doug Stephens Law Firm”, the billing for the second $1,750.00 sanction “Misc(ellaneous Costs)”, and the billing for the third $1,050.00 sanction “Miscellaneous; Attorneys’ Fees; B. Douglas Stephens.” According to the disciplinary report, “(o)nly after your former partners learned of the sanctions orders was the client fully informed.”

The lawyer was found to have violated Iowa disciplinary rules related to lack of communication, lack of diligence, and charging an unreasonable fee or expense and was reprimanded.

Bottom line: This lawyer was found to be negligent in timely responding to discovery related matters, which resulted in three separate attorney’s fee sanctions and, not only did he fail to tell the client about the negligence and the sanctions which resulted from his negligence, but he also had the audacity to bill the client for the costs of the sanctions. That certainly was not a good decision and it is somewhat surprising that the lawyer only received a reprimand.

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, deceit, dishonesty, Excessive fee, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer lack of competence, Lawyer lack of diligence, Lawyer sanctions, Lawyer unreasonable fee

Massachusetts Supreme Court imposes public reprimand on lawyer who lacked competence in electronic discovery and violated court order

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Massachusetts Supreme Court which adopted a stipulation and imposed a public reprimand on a lawyer whose “lack of experience in electronic discovery” resulted in the violation of a court order to preserve digital evidence.  The lawyer was found to have violated Massachusetts Bar Rules related to violation of an order of the tribunal, client communication and competence.  The opinion is Massachusetts Bar v. Reisman, No. 2013-21 (October 9, 2013).  The opinion is at: http://www.mass.gov/obcbbo/pr13-21.pdf

According to the opinion, the lawyer was hired to represent ASI and an employee of ASI in defending civil claims brought by the former employer of the employee and a competitor of ASI called NSA.  The employee had resigned from NSA effective September 29, 2006, and had begun employment with ASI on October 1, 2006.  Without NSA’s permission, the employee brought an NSA laptop computer to ASI that he had used in his employment at NSA.  Between October 1 and October 23, 2006, the employee transferred some files from the NSA laptop to an ASI laptop and then used a scrubbing program to delete all files from the NSA laptop and he returned it to NSA on October 23, 2006.

The trial court entered a temporary restraining order on November 15, 2006 which, inter alia, prohibited the employee from disposing of or using NSA trade secrets or confidential information.  The order also required the employee to return to NSA all information that he deleted from the NSA laptop and transferred to any other device. The employee denied that he had transferred any NSA information to any other device and the lawyer filed an answer and counterclaims on December 6, 2006 denying that any proprietary or other confidential information of NSA was uploaded and given to ASI.

On November 17, 2006, without the lawyer’s knowledge, the employee used a scrubbing program to delete some NSA files from the ASI computer.  On March 7, 2007, NSA’s counsel sent an e-mail to the lawyer e-mail that NSA would be filing a motion to gain access to his client’s computers and that the lawyer was required to inform the employee and ASI to preserve any documents “that relate to the case,” including any on the employee’s ASI laptop. The lawyer took no action and did not advise employee or his employer not to delete relevant files from the ASI laptop.

NSA filed a motion to compel production of ASI’s computers for forensic examination.  On April 12, 2007, again without the lawyer’s knowledge, but on the same day as a hearing on discovery issues, the employee used a scrubbing program to delete files from his ASI computer.  After the hearing on April 13, 2007, the trial court ordered that the hard drive be preserved and that NSA’s forensic expert be given access to the employee’s ASI computer.  After a further hearing on May 2, 2007, the trial court amended the order to allow the hard drive to be copied but to limit the expert’s examination of the copy to any NSA proprietary or confidential files copied to the computer in September or October 2006.

After the April 13, 2007 order, the employee told the lawyer that there were confidential documents and information on his laptop which was related to ASI and unrelated to NSA and which should not be disclosed to NSA or its expert.  The lawyer did not ask about the nature or content of the documents and he also apparently believed that the ASI confidential information was not relevant to the litigation; therefore, notwithstanding the court order, he advised the employee that he could scrub the confidential information from his laptop. 

Because of the lawyer’s “lack of experience in electronic discovery, (he) failed to appreciate that the order of April 13, 2007, required the entire hard drive to be preserved for the NSA expert, not just documents obtained from NSA.  The (lawyer) advised the employee that he should scrub files unrelated to NSA without first conferring with experienced counsel or conducting research as to his client’s legal obligations and without any attempt to confirm that the materials to be deleted were as represented.”  The day before the expert’s examination of the computer, the employee scrubbed additional files from the ASI computer. 

On December 6, 2007, after being advised of the series of deletions, the trial court issued a memorandum and order finding that the employee had engaged in spoliation of evidence.  The trial court declined to enter a default judgment against the employee, but granted additional discovery and access to the ASI computer for whatever additional analysis that the plaintiff could perform.  The lawyer then withdrew from the representation in October 2010 and another lawyer entered an appearance.

The lawyer and Massachusetts disciplinary board lawyer entered into a stipulation of facts and disciplinary violations and a joint recommendation for a public reprimand with attendance within one year at two CLE programs, one on electronic discovery and one on ethics and law office management.  The board accepted the parties’ recommendation and imposed a public reprimand subject to the conditions on September 23, 2013 and the opinion adopted the terms of the stipulation.

“The (lawyer’s) advice to his client scrub certain files from the hard drive of a laptop in contravention of a court order constituted unlawful obstruction of another party’s access to evidence, in violation of Mass. R. Prof. C. 3.4(a) (violate an order of a tribunal). The respondent’s failure to adequately communicate to his client his obligations under the court order and the potential prejudice of altering property subject to the court order was conduct in violation of Mass. R. Prof. C. 1.4 (communication).  Finally, the respondent’s conduct of handling a matter that he was not competent to handle without adequate research or associating with or conferring with experienced counsel, and without any attempt to confirm the nature and content of the proposed deletions, was conduct in violation of Mass. R. Prof. C. 1.1 (competence).”

In aggravation, “the (lawyer’s) condoning the alteration of the hard drive had the potential to prejudice the plaintiff’s pursuit of discovery, and the client was found to have engaged in spoliation. Much of the spoliation, however, took place prior to the respondent’s advice, and the trial court ultimately found that even assuming that client transferred confidential information to ACI, the plaintiff did not prove that the client’s conduct caused any damages to NSA.  In mitigation, the r(lawyer) was relatively inexperienced in the relevant area of discovery practice.”

Bottom line:  This lawyer may have been acting in good faith when he acquiesced to (or gave advice to the client to) scrub electronic files in violation of a court order; however, this case again illustrates how a lack of competence related to orders to preserve electronic and digital files can result in the discipline of a lawyer. 

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

www.jac-law.com

 

 

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Filed under Attorney discipline, Attorney Ethics, Communication with clients, lawyer electronic discovery violation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions, Lawyer violation of court order

West Virginia lawyer receives 30 day suspension for failing to move to correct sentencing order after repeated requests and promises to do so and after being admonished 5 previous times for similar misconduct

Hello everyone and welcome to this Ethics Alert blog which will discuss a recent West Virginia Supreme Court of Appeals opinion imposing a 30 day suspension on a lawyer who failed to communicate with a client on multiple occasions, failed to follow through to correct a sentencing order, and failed to respond to the Bar complaint (and had been admonished 5 previous times for similar misconduct).  The disciplinary case is: Lawyer Disciplinary Board v. Sullivan, No. 12-0005 (1/17/12).  The opinion is online at: http://www.courtswv.gov/supreme-court/docs/spring2013/12-0005.pdf.

According to the opinion, the lawyer was an assistant public defender and was appointed to represent a defendant in a criminal matter.  On December 7, 2009, the client/defendant entered a guilty plea and was sentenced to a 1-5 year term of imprisonment.  The circuit court did not enter the sentencing order until approximately nine months later.  Shortly after entry of the sentencing order, the client was informed by the West Virginia Division of Corrections that his parole eligibility, based on his sentencing order, would be October 1, 2011; however, the client believed that the sentencing order failed to accurately reflect his effective sentencing date, and that he was actually supposed to be parole eligible on April 11, 2011, almost six months earlier.

The client and members of his family contacted the lawyer and requested that he act to correct the sentencing order.  The lawyer promised that he would look into the issue; however, after receiving no response, the client and his family made repeated efforts to contact the lawyer, leaving messages at his office, and also leaving a message with one of his supervisors.  The lawyer never responded to the messages and the client then filed a disciplinary complaint against the lawyer.

The lawyer failed to respond to multiple communications from disciplinary counsel requesting a response to the complaint.  On December 15, 2011, disciplinary counsel filed a Statement of Charges alleging that the lawyer violated the West Virginia Rules of Professional Conduct, specifically, Rule 1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client; Rule 1.4, which requires a lawyer to keep clients reasonably informed of the status of their matter and to promptly respond to reasonable requests for information, and to explain matters to clients to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and Rule 8.1(b), which makes it a violation of the Rules for a lawyer, in connection with a disciplinary proceeding, to knowingly fail to respond to a lawful demand for information.

The Statement of Charges also listed several aggravating factors, including that the lawyer (1) had substantial experience in the practice of law, (2) had been admonished on five separate occasions by the ODC for similar conduct, (3) had demonstrated a pattern and practice of failing to adequately communicate with clients, and (4) had demonstrated a pattern and practice of failing to respond to lawful requests from the ODC.

The lawyer signed a stipulation admitting to the facts and violations and agreeing to a public reprimand.  The opinion rejected the stipulation and imposed a 30 day suspension noting that, at the time of his fifth admonishment, the lawyer “pledged to the [Office of Disciplinary Counsel], and to the Board, that he would be more diligent in representing his clients” but…the record shows that at the same time he was making this pledge, the Respondent was ignoring repeated requests from [this client and his family to take the action necessary to correct a facially inaccurate sentencing order…there is no evidence that a sixth admonishment, even in the heightened form of a public reprimand, would appropriately sanction the respondent attorney, or that it would serve as an effective deterrent to other members of the Bar or maintain public confidence in the ethical standards of the legal profession.  We do not believe that supervised probation alone will be sufficient to protect the public’s interest.”

Bottom line:  This lawyer was given multiple chances to improve his client communication skills and act with diligence but failed to do so.  He also failed to respond to the initially disciplinary complaint, which resulted in an additional violation of the Bar Rules.  He will now serve a 30 day suspension.  Please don’t go there…

…and be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Communication with clients, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of communication with client, Lawyer lack of diligence