Category Archives: Lawyer lack of competence

Lawyer’s ethical duties and responsibilities when a represented person requests a second opinion

Hello everyone and welcome to this Ethics Alert which will discuss the lawyer’s ethical duties and responsibilities when a represented person contacts the lawyer to obtain a second opinion.  Although a lawyer is permitted to render a second opinion to a represented person who initiates the contact with the lawyer, there are important ethical and practical issues which should be considered before the lawyer agrees to do so.

A threshold issue is whether a second opinion would be an improper communication with a person represented by counsel.  In 2002, the ABA added a sentence to paragraph 4 of the Comment to Model Rule 4.2 which makes it clear that lawyers can provide second opinions if the lawyer is not representing another individual in the same matter.  Model Rule 4.2 has been adopted in substantial form by most jurisdictions, including Florida.  The Comment states:

(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.

Florida Bar Ethics Opinion 02-5 (March 3, 2013, rev. August 24, 2011) discusses types of information a lawyer can give to an individual who is seeking a second opinion as well as potential solicitation.  The opinion states that, a lawyer may provide information about the lawyer’s availability and qualifications when contacted by an individual and if the information is requested.

The opinion concludes:

… a lawyer may provide a second opinion to a person who is represented by counsel at the person’s request. In providing the second opinion, the lawyer must give competent advice, and in doing so should carefully consider any limitations with which the lawyer is faced. Rule 4-1.1, Rules Regulating The Florida Bar. The lawyer should scrupulously avoid improperly soliciting the person. The lawyer may discuss what services the lawyer would be able to provide if the represented person requests not merely a second opinion, but also information about the lawyer’s availability and qualifications. Whether or not particular communications between the lawyer and the represented person might be considered tortious interference with an existing lawyer-client relationship is a legal question, outside the scope of an ethics opinion.

As is stated in the above ethics opinion, before giving a second opinion, the lawyer should consider whether he or she can competently render the opinion.  In order to be competent, the lawyer might need to review the client’s file, which may only be available through the client’s current lawyer.

South Carolina Bar Opinion 97-07 (1997) states:

…A lawyer may discuss a pending legal matter with a client who is represented by another attorney. If the client is seeking a second opinion based on a subjective opinion rendered by the client’s attorney, the lawyer should carefully consider the basis of the advice of the client’s attorney and may be required to consult with the client’s attorney in order to give competent legal advice. If so, the lawyer should advise the client accordingly prior to giving any opinion or advice.

A lawyer who provides a second opinion is also creating an attorney/client relationship and attorney/client confidentiality would apply.  The scope of confidentiality is extremely broad and includes all information related to the representation, including the fact that the client came to the lawyer for a consultation; therefore, the lawyer would not be able to contact the person’s current lawyer, unless the client consents or there is an exception to the confidentiality rule.

Oregon State Bar Opinion 2005-81 (Revised 2014) states:

A lawyer may provide a second opinion to a potential client regarding the quality of work done by another lawyer. The lawyer may not inform the other lawyer of the client’s request unless the client consents or another exception to the duty of confidentiality is applicable.

Bottom line:  It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.

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

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Florida Supreme Court adds three hours of technology to lawyer’s mandatory CLE requirements and increases total hours from 30 to 33

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which approved proposed changes to Florida Bar rules mandating three hours of continuing legal education in technology related areas/courses.  Florida will become the first state to mandate technology CLE.  The opinion is In Re: Amendments to the Rules Regulating The Florida Bar 4-1.1 and 6-10.3, No. SC16-574 (September 29, 2016) and is here:  http://www.floridasupremecourt.org/decisions/2016/sc16-574.pdf. The rule amendments will become effective on January 1, 2017.

The opinion adopted the recommendations of the The Florida Bar’s Vision 2016 Commission’s Technology Subcommittee.  The revision to rule 6-10.3 increases the CLE requirements for Florida lawyers from 30 to 33 hours of credit every three years and three hours must be in technology related areas/courses.

The opinion also amended the comment to rule 4-1.1 (Competence) “to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmissions and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”

Bottom line: Beginning in January 2017, lawyers will be required to obtain 33 hours of CLE every 3 years (up from 30) with a minimum of three hours in technology related areas/courses.

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

 

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Filed under Attorney Ethics, Florida Bar, Florida lawyer CLE technology competence, Florida Lawyer Ethics and Professionalism, Florida lawyer technology competence rule 4-1.1, joe corsmeier, Joseph Corsmeier, Lawyer competence technology, Lawyer ethics, Lawyer lack of competence, Lawyer technology competence

Illinois Bar complaint alleges that lawyer left racially and religiously abusive voice mails and neglected a criminal appeal

Hello everyone and welcome to this Ethics Alert which will discuss the recent disciplinary complaint filed by the Illinois Disciplinary Commission against a Chicago, Illinois lawyer alleging, inter alia, that the lawyer left abusive voice mails telling the father of one client that “all black people are alike”, calling a nursing home administrator a “stupid Jew ass”, and using other abusive racial and ethnic language in the voice mails.  The disciplinary complaint was filed in the case of In the Matter of the Michael Jerome Moore, Commission No. 2015PR00076 (August 26, 2015) and is here: http://www.iardc.org/15PR0076CM.html

The first count of the disciplinary complaint alleges that the lawyer represented a client in defending criminal aggravated battery charges beginning in 2012.  The lawyer left voice mails with the client’s father in the summer of 2014 in an attempt to collect $300.00 in additional fees. The father had already paid a $3,500.00 under the fee agreement, as well as an extra $200.00.  The voice mail included the following statements:

“You are a piece of garbage. All black people are alike. You’re slovenly, ignorant.”

“You better give me my money or your son’s case is going to be delayed.”

“I’m sick of you, you piece of shit.”

“Low class n—–s. I’m going to have you all locked up.”

“You’re ugly, low class, ignorant. I’ll finish with you when he gets off. You’re demeaning your son.”

The second count of the disciplinary complaint alleges that the lawyer represented an individual in matters related to a power of attorney that the individual had executed for the lawyer to assist him.  The client was moved out of a nursing home and the lawyer left a voice mail with the nursing home in June 2014 protesting the nursing home’s release of the client. The voice mail included the following statements:

“You know, I tried to be academic, intellectual, and community-minded and everything else with you. What you’re supposed to do as a nursing home, you piece of [shoe or Jew] garbage. You put my girl out in the street and didn’t give a fuck, and didn’t let her come back, and know that she is mentally challenged. Are you mentally challenged, you piece of shit? Let me tell you something. There is a tort–with your stupid ass, you don’t know what that is—called violation of fiduciary capacity. And that’s what you’ve done in this, with your stupid Jew ass. Mother-fuck you, how you fucked my girl. Okay, I’m going to sue you, a federal law– I’ll sue you, sue the fuck out of you. You should’ve knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She’s schizophrenic, hyper-paranoid schizophrenic, you piece of shit.”

The third count of the disciplinary complaint alleges that the lawyer violated the Illinois Bar disciplinary rules by:

“failing to provide competent representation to a client, by conduct including failing to file a completed petition for waiver of appellate fees and affidavit of indigency signed by Thomas and failing to respond to orders of the Wisconsin Court of Appeals, in violation of Rule 20:1.1 of the Wisconsin Rules of Professional Conduct; and

failing to act with reasonable diligence and promptness in representing a client, by conduct including failing to file a completed petition for waiver of appellate fees and affidavit of indigency signed by Thomas and failing to respond to orders of the Wisconsin Court of Appeals, in violation of Rule 20:1.3 of the Wisconsin Rules of Professional Conduct.”

Bottom line: This is another “you couldn’t make this up” moment.  If the allegations are true, it appears that anger management may in this lawyer’s future.  Although this is clearly an extreme case (if the allegations are true) it provides me with a good opportunity to remind all lawyers (and non-lawyer staff) that we all must be extremely careful with our words in voice mails, e-mails, and all other communications.  Also, we must always keep in mind that a voice mail message may very well be accessed by a person other than a client; therefore, a v/m message should not reveal any attorney/client confidential information.

Be careful out there.

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

Disclaimer:  this blog 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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Florida Bar’s Board of Governors approves increase in CLE hours and revision to the comment to Rule 4-1.1 to require technology competence

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent approval by The Florida Bar’s Board of Governors of amendments to the rules related to technology and increasing the required CLE from 30 to 33 hours, with 3 hours of technology.

The Florida Bar’s Board of Governors (BOG) met on July 24, 2015 and approved a proposed amendment to the Bar Rule 6-10.3, minimum continuing legal education standards, which would increase the minimum CLE requirements from 30 to 33 hours and also require 3 CLE hours in, inter alia, technology related education for each three year cycle. The proposed amendment would maintain the 5 hour minimum requirement for legal ethics, professionalism, bias elimination, substance abuse, or mental illness.  The BOG also approved an amendment to the Comment to Bar Rule 4-1.1 of the Florida Bar rules to emphasize that a lawyer must be competent in the use of technology (or hire someone who is), and understand of the risks and benefits associated with the use of technology.

The approved rule amendments will be submitted in an omnibus petition to amend The Florida Bar Rules, which will be filed with the Florida Supreme Court in the fall of 2016.  Florida lawyers will be solicited to comment on the revisions and those comments will be sent to the Florida Supreme Court with the proposed rule amendments.

Bottom line:  If the rule amendment is approved by the Supreme Court, the minimum CLE hours required of Florida lawyers will increase from 30 to 33 hours every three (3) years, with 3 hours of technology related CLE.  The comment to Rule 4-1.1 will also put lawyers on notice that they must be competent in the use of technology (or hire someone who is).

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 Ethics, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of competence, Lawyer technology competence

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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Florida Supreme Court disbars lawyer for, inter alia, making agreement with defendant for payment to make the case “go away” while representing victim

Hello everyone and welcome to this Ethics Alert blog (with a corrected title) which discusses the recent the Florida Supreme Court Order which upheld a referee’s report and disbarred a Florida lawyer for, inter alia, making an agreement with a defendant in a criminal matter for payment to make the criminal case “go away” while representing the victim in the same case. The case is: The Florida Bar v. Mark F. Germain, SC12-1981 and SC12-2289 (July 8, 2014) and the Order is here: http://www.floridasupremecourt.org/clerk/dispositions/2014/07/12-1981_12-2289.pdf.

According to the referee’s report, which was adopted by the Florida Supreme Court, Jeffrey Bowman was arrested in Lake County, Florida on or about July 1, 2011, following an alleged domestic battery on Bonnie DePaolo. Bowman was later released and ordered to have no contact with DePaolo as a condition of his pretrial release. An Assistant State Attorney met DePaolo on the day of Bowman’s bond hearing and she said that she was very upset that Bowman was bonding out of jail.

According to testimony by the lawyer, Bowman was the subject of a 2007 injunction regarding DePaolo and she also went to the hospital after the incident for the injuries Bowman allegedly caused. DePaolo’s sister, Rita Hazlett, testified that, while DePaolo was staying with, a Sheriff’s deputy came to her house to warn her that Bowman had threatened to kill her and that he came into her yard, angry and waving a gun.

In early July 2011, the lawyer agreed to represent DePaolo, the victim in the matter. The lawyer then called the defendant, Bowman, and requested a meeting at a restaurant in order to make it “all go away.” Bowman testified that they discussed getting his belongings back and dropping the prosecution for “cash.” Bowman did not agree to this, and the settlement was not finalized.

The lawyer then called attorney John Bruce Bowman, the brother of Bowman, and suggested to him that Bowman pay a “substantial” amount of money to avoid prosecution. Attorney Bowman told him that the suggestion was extortion and he would not be a part of it. Attorney Bowman later reviewed a settlement agreement that was negotiated between Bowman and the lawyer. He also stated that the lawyer never discussed a civil settlement or claim and that the telephone call was about “saving money with a criminal lawyer and getting money to resolve a criminal matter.”

The lawyer testified that the content of the proposed settlement agreement was in an e-mail he sent to Jeffrey Bowman and attorney Bowman; however, attorney Bowman apparently never received a copy of any e-mail because of a “faulty e-mail address”. The lawyer also did not have DePaolo’s medical bills at the time of the agreement, which later exceeded $3,000.00.

The lawyer tried to resolve the criminal case before a July 14, 2011 meeting between the Assistant State Attorney and DePaolo so that Bowman would not have to “spend money” on a criminal defense attorney. The lawyer testified that he was aware of the Bar rules prohibiting compensating people to drop criminal charges and that he did not call the Florida Bar Hotline during the preparation of the agreement.

The lawyer then prepared a settlement agreement in which DePaolo would sign an Intent Not to Prosecute and “in good faith make every effort to ensure that there is no prosecution.” The agreement also contained the following statement: “I, attorney Mark F. Germain, hereby acknowledge receipt of $1,500 from Jeffrey ALLEN BOWMAN on behalf of BONNIE DEPAOLO as compensation for the concessions made herein.” (emphasis supplied). The agreement was signed July 10, 2011, by both the lawyer and DePaolo; however, the lawyer never received the $1,500.00 from Jeffrey Bowman.

Soon after the agreement was signed, the lawyer called attorney James Hope, who was his supervising attorney for probation imposed in a previous Bar matter, regarding the agreement. “Mr. Hope dissuaded (the lawyer) from using the language in paragraph three, but (the lawyer) continued to press as to why he thought the language was appropriate. Mr. Hope told (the lawyer), ‘I wouldn’t touch that with a ten foot pole.’ (The lawyer) then admitted that the agreement was not a proposal, and that he had already signed it.”

The referee found that the lawyer did not competently in representing DePaolo, including the failure to obtain an injunction, which would have “greater enforceability and consequences for violation than a ‘no contact’ order from first appearance (an order prohibiting contact with Ms. DePaolo as a condition of pretrial release). He also waived her ability to seek personal injury damages, without knowing what those damages were, and then encouraged settlement for a sum of money far below the actual costs she incurred for medical treatment.”

The referee also found “(the lawyer) also discouraged the criminal prosecution of the ‘perpetrator’ in this case, which prosecution may have resulted in further protections and restitution for Ms. DePaolo. He attempted to negotiate a settlement which was beneficial to Jeffrey Bowman and detrimental to Bonnie DePaolo, and he attempted to extort funds from Jeffrey Bowman in exchange for a declination of prosecution. In addition to the harm this caused to Ms. DePaolo, Respondent ultimately interfered with the State’s prosecution of Jeffrey Bowman by negotiating terms encouraging Ms. DePaolo’s non-participation as a witness in the case.”

The referee also found that “(the lawyer) was misleading during the Bar’s investigation of this matter. For example, he prepared two affidavits for Ms. DePaolo, which were at best self-serving testimony, and were not accurate. During the hearing, Ms. DePaolo could not even read portions of the Affidavits, and it was clear that the contents were not her testimony. These affidavits were prepared at critical points in the disciplinary process. (The lawyer) also gave deposition testimony that was not accurate.”

After listing the Bar Rules that the lawyer violated, including 4-1.1, 4-1.7(a)(2), 4-3.4(b), 4-8.4(a), and 4-8.4(d), applying the Florida Standards for Imposing Lawyer Sanctions, mitigation and aggravation, and case law, the referee recommended that the lawyer be held in contempt of his probation and permanently disbarred. In a one page Order, the Florida Supreme Court upheld the referee’s findings and found the lawyer in contempt; however, the Court reduced the permanent disbarment to a 5 year disbarment.

Bottom line: This is a somewhat bizarre set of facts to say the least and, according to the referee’s report, the lawyer apparently knew that what he was doing was a violation of the Bar rules. He will now have 5 plus years to think about it.

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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