Category Archives: Lawyer Professionalism

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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Michigan board recommends disbarment for lawyer who allegedly lied about, inter alia, being on the 1996 U.S. Olympic team

Hello everyone and welcome to this Ethics Alert which will discuss the recent Michigan Disciplinary Board opinion recommending disbarment for lawyer who allegedly lied about his qualifications and participation on a U.S. Olympic team.  The case is Michigan Grievance Administrator, v. Ali S. Zaidi, Case No. 14-117-GA (January 11, 2017).  The Disciplinary Board’s opinion is here: http://www.adbmich.org/coveo/opinions/2017-01-11-14o-117.pdf

According to the Board opinion, the lawyer made misrepresentations that “run the gamut from outlandish and extravagant to what might be termed modifications of his record inspired by some actual events”.  The lawyer misrepresented and inflated the time of his employment and invented fictional summer associate positions at law firms where he worked at other times.  He was employed for short periods by law firms in Connecticut and Missouri and he falsely claimed that he was admitted to practice in those states.

The lawyer also falsely claimed that he was on the 1996 U.S. Olympic field hockey team and that he had a master of liberal arts from Harvard University.  He also maintained a website that represented that his law firm, called Great Lakes Legal Group, was associated with multiple lawyers at several locations around the country.  The lawyer admitted that this representation was false and that law firm was just an “idea that is still in progress.”

A disciplinary hearing was scheduled before a Board panel.  The lawyer requested that the hearing be continued because of a birthday party for his children and later because he could not obtain child care. The request was denied and the hearing was held without his presence.  The panel found the lawyer guilty, found numerous aggravating factors, and recommended disbarment.

The lawyer filed a petition for review claiming that he missed the hearing because his daughter was recovering from surgery on her eye; however, the disciplinary board found that the lawyer had been provided proper notice and upheld the decision not to continue the hearing.

The lawyer appeared at the sanctions hearing before the panel and admitted that he made misrepresentations regarding his qualifications since he was “scared nobody would hire me if they realized why I was moving around so much…and I wanted to create this impression of longevity and create this impression of consistency of my movements.”

According to the Board opinion, the lawyer “did not present any coherent reason or evidence for his conduct that could be viewed as mitigating, in part, he claimed, because he did not want to inconvenience his character witnesses. Furthermore, he failed to present any argument on what sanction would be appropriate.”

The Board opinion found that, “(c)ollectively, (the lawyer’s) actions are indicative of a cumulative pattern of a lack of honesty and candor, which is contrary to the fundamental characteristics of an attorney. Although respondent does not have any prior discipline, there is no question he has an established track record of deceit. Given the number and pattern of violations, respondent’s dishonesty, and his overall lack of candor and cooperation, the panel properly found that disbarment is appropriate in this case.”

Bottom line:  This a somewhat bizarre case, to put it mildly.  The lawyer appears to have a problem with the truth and apparently tried to justify his actions with self-serving excuses.  The Michigan Supreme Court will now review the case and determine the sanction.

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 discipline, Attorney Ethics, Attorney misrepresentation, Confidentiality and privilege, dishonesty, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false claims on resume and website, Lawyer false statements, Lawyer misrepresentation, Lawyer personal misconduct false internet postings, Lawyer Professionalism, Lawyer sanctions

Wisconsin lawyer’s alleged failure to appear at trial and later offer of gift card to a judicial assistant results in Bar disciplinary complaint

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent Bar Complaint filed against a Wisconsin lawyer who, inter alia, allegedly failed to appear for a trial and then “tossed a gift card” on the desk of the judge’s assistant in an apparent attempt to gain favor regarding the judge’s decision not to reschedule the trial and imposing the default judgment.  The disciplinary complaint name and file number is In Re: Kirk W. Everson, Case No. 2015AP1054D.

According to a disciplinary complaint filed by the Wisconsin Office of Lawyer Regulation on May 28, 2015, the lawyer was scheduled to appear in a trial on a drunken driving ordinance violation in Oshkosh, Wisconsin before a Circuit Judge named Thomas Gritton.  On the same morning, the lawyer was also scheduled to appear in a criminal case before a different judge in another Circuit Court in Vilas County, Wisconsin.

The lawyer had agreed to represent the defendant in Vilas County, Wisconsin during the week of September 23, 2013.  On September 26, 2013, the lawyer filed a motion requesting a continuance of the trial before Judge Gritton; however, the judge apparently had not received it by September 30, 2013.

The case was then called for trial on September 30, 2013.  The judge said: “Well I didn’t give you permission not to be here.  Nobody gave—I mean, you just don’t get to not show up.  It is not the way it works.  And he had nothing from my office or from me directing him that he didn’t need to be here.  I’m going to find him in default.  I’m going to set a sentencing date and we’ll see what he (the lawyer) has to say.”

The judicial assistant called the lawyer on September 30, 2013 and advised him that the judge had defaulted and found his client guilty because of his non-appearance at the trial and she was calling to calendar a sentencing date.  She also stated that she did not know what would happen and the lawyer became agitated and told the assistant that he was being “railroaded” by the court and the assistant city attorney.  The lawyer said he did not have his schedule and the judicial assistant then said that she would contact the lawyer’s assistant to set up the hearing.

Later that same day, the lawyer went to the courthouse and “tossed a gift card” on the judicial assistant’s desk. The judicial assistant said that she could not accept it and moved it back toward the lawyer.  The lawyer then said the following (or something similar to): “What, I don’t see anything” and took back the card.  The Complaint does not specify the dollar amount of the gift card.

The judicial assistant told the judge of the lawyer’s alleged misconduct and the judge subsequently advised the Wisconsin Bar authorities (Office of Lawyer Regulation) regarding  the incident.  According to media reports, the judge revoked lawyer’s client’s driver’s license for eight months in October 2013 and the Wisconsin Bar has offered the lawyer a private reprimand to resolve the complaint.

Bottom line:  This Wisconsin lawyer apparently failed to appear at a trial and, after a default was entered, he attempted to offer an improper gift card/incentive to a judicial assistant and is being offered a private reprimand.  It would be very surprising if this result is approved by the Wisconsin Supreme Court.

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, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline failure to appear for trial, Lawyer discipline improper attempt at gift to judicial assistant, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer sanctions

Illinois imposes one year suspension on (former) law firm partner who falsified and received $69,800.00 in client expense reimbursement

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Supreme Court Order which imposed a one year suspension on a law firm partner who falsified and received $69,800.00 in client expense reimbursement claims.  The case is In re: Lee Mark Smolen, Disciplinary Commission, M.R.27199, No. 2013PR00060 (March 12, 2015).  The summary disciplinary Order is here: http://www.state.il.us/court/SupremeCourt/Announce/2015/031215.pdf

As I reported in my January 12, 2015 Ethics Alert, a law firm audit found that the lawyer had submitted $69,800.00 in falsified taxi expenses and questioned an additional $379,000.00 reimbursed expenses.  The lawyer admitted that he “falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take. He further admits he received reimbursement totaling $69,800 for the fabricated receipts.”

According to the Hearing Board Report, the expenses were charged to an unallocated client account which was “virtually unmonitored”.  The lawyer agreed that the law firm could withdraw $400,000.00 from his account to cover the expenses and the cost of the audit and he testified he used the cab money to pay for client entertainment, saving the time of making out expense reports.  He testified that he only slept three or four hours a night and typically spent 12 to 15 hours a day at work.

The Report further stated that the lawyer’s “mental health issues and his misconduct” were considered and one doctor opined there was a “loose association” between the lawyer’s personality disorder and his misconduct because the lawyer “was excessively devoted to work as a result of his obsessive-compulsive disorder.”  Another doctor stated that the lawyer’s depressive disorder and anxiety disorder led to “tremendous impairment of judgment” which led to the misconduct.  Both doctors found that the lawyer’s mental health played at least a minor role in his misconduct and gave it “some weight” as a mitigating factor.

 

According to the Report:  “We recognize that the amount of Respondent’s falsified expenses is greater than the amounts in the (cited) cases but in light of (the lawyer’s) significant mitigation we do not believe a suspension of more than one year is warranted.  We believe a one-year suspension addresses the severity of the misconduct and also takes into consideration the substantial mitigating factors.”

The Report recommended that (the lawyer) be suspended for one year and until he completed at least twelve months of continuous treatment with a psychiatrist. The lawyer’s suspension would terminate after one year if he “demonstrates his completion of treatment to the Administrator’s satisfaction.”  The Illinois Supreme Court adopted the Report and suspended the lawyer for one year with the recommended conditions.

Bottom line:  As I said previously, this lawyer admitted that he falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take and received payment for nearly $70,000.00 from clients for the fabricated receipts.  An audit also questioned an additional $379,000.00 in reimbursed expenses.  In light of the large amount of the lawyer’s admitted misappropriation, it is surprising that the Board did not recommend disbarment for the misconduct and also that the Illinois Supreme Court approved the one year suspension recommendation.

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 misrepresentation, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer expense reimbursement, Lawyer misappropriation, Lawyer misrepresentation, Lawyer misrepresentations to law firm re billings, Lawyer Professionalism, Lawyer sanctions

Kentucky lawyer permanently disbarred after pleading guilty to felony “flagrant non-support” for failing to pay over $200,000.00 in child support

Hello everyone and welcome to this Ethics Alert blog which will discuss a recent Kentucky Supreme Court opinion disbarring a lawyer after the lawyer pled guilty to felony “flagrant non-support for failing to pay over $200,000.00 in child support. The case is Kentucky Bar Association v. Daniel Warren James, Case No. 2014-SC-000499-KB (Ky. SC February 19, 2015) and the opinion is here: http://opinions.kycourts.net/sc/2014-SC-000499-KB.pdf.

According to the opinion, the lawyer pled guilty in 2012 to a felony charge of “flagrant non-support”, received 5 years in prison with probation for 10 years and was ordered to pay $233,000.00 in restitution. On February 8, 2013, after the plea was entered, the Kentucky Bar Association Inquiry Commission filed a complaint against the lawyer and he failed to respond.

On March 11, 2014, the Commission filed formal charges against the lawyer. Count I alleged misconduct for committing a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer and Count II alleged misconduct for knowingly failing to respond to the February 8, 2013 complaint. The lawyer again failed to respond and was defaulted.

The lawyer had previously been suspended for five years for a multiple acts of misconduct, including not returning unearned fees, misappropriating client money for personal use, and altering billing statements. The lawyer admitted that misconduct and claimed that it was a result of the discontinuation of medication that he was taking for a mental health condition. As a condition of that suspension, the lawyer agreed to seek treatment through Kentucky Lawyer Assistance Program (KYLAP) and to continue treatment as needed during the suspension period.

On August 21, 2014, the Kentucky Board of Governors filed its Findings of Fact, Conclusions of Law and Recommendations with the Supreme Court and unanimously recommended that the lawyer be found guilty and that he be permanently disbarred. In aggravation, the Board noted the $233,000.00 child support arrearage that the lawyer had failed to pay over a thirteen year period, his prior discipline, most of which involved the misuse of client funds, and his failure to respond to his clients and the Bar.

The Supreme Court opinion noted that a lawyer in Kentucky had never been disciplined for criminally failing to pay child support; however, it found that the conduct violated the lawyer’s duty “’to conduct (his) personal and professional life in such manner as to be above reproach’. Grigsby v. Kentucky Bar Ass’n, 181 S.W.3d 40, 42 (Ky. 2005). ‘Failing to pay court ordered child support encompasses several breaches, including: failure to satisfy the statutory obligation of supporting one’s child; failure to follow a court order; and violation of the attorney’s duty recognized in Grigsby.’” The lawyer was permanently disbarred.

Bottom line: This sole practitioner apparently had serious mental health issues which destroyed his practice and resulted in his permanent disbarment. All lawyers, especially solos, must address the extreme stress involved in the practice of law and be fully aware of the consequences of personal and professional misconduct (including willful or “flagrant” failure to pay child support) that may be triggered due to the stress of practice (and life) and seek medical help.

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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Filed under Attorney discipline, Attorney Ethics, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer criminal conduct, Lawyer disbarment, Lawyer discipline, Lawyer discipline for criminalconviction, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer flagrant and willful failure to pay child support, Lawyer Professionalism, Lawyer sanctions, Lawyer wilful failure to comply with court order

Illinois Disciplinary Board recommends one year suspension for partner who falsified and submitted $69,800.00 in client expense reimbursement claims

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Disciplinary Board Report which recommended a one year suspension for a law firm partner who falsified and submitted $69,800.00 in client expense reimbursement claims. The case is In re Lee Mark Smolen, Commission No. 2013PR00060 (1/7/14). The Board’s Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11590

According to the Report and Recommendation, the lawyer (former Sidley Austin partner Lee Smolen) was employed in the firm real estate department since he was admitted to practice in 1987. He admitted that “he falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take. He further admits he received reimbursement totaling $69,800 for the fabricated receipts.” He charged the expenses to an unallocated client account which was virtually unmonitored.

“In 2005, (the lawyer) billed 3,576 hours, which included time billed to clients and time spent on services to the firm. (The lawyer) billed 3,483 hours in 2006 and 3,332 hours in 2007. (citation omitted).” “(The lawyer) typically spent 12-15 hours per day at work and did additional work after he came home and on weekends. (citation omitted). He slept three or four hours per night. (citation omitted). (The lawyer’s) annual compensation at the time he left Sidley was $3.5 million. (citation omitted). He was one of the most highly compensated partners in the firm. (citation omitted).”

“(The lawyer’s) conduct was purposeful and intentional. We do not accept his explanation that he simply acted without thinking. (The lawyer) made conscious decisions and took conscious action each time he created and submitted a false receipt. He charged the cab rides to the Wells Fargo unallocated account, which he controlled. There was no reason for (the lawyer) to take the actions he took unless he intended to make the Sidley accounting department and management believe something that was not true, i.e., that he incurred valid cab ride expenses for which he was entitled to be reimbursed. (citation omitted).

“We do not find credible (the lawyer’s) assertion that he did not realize he was doing anything wrong. An attorney of any level of experience should recognize the wrongfulness of fabricating expenses. Given (the lawyer’s) substantial legal experience and accounting background, his professed lack of awareness is implausible.

“(The lawyer’s) purported use of the reimbursement funds for a legitimate purpose does not alter our finding of dishonesty. Other than (the lawyer’s) testimony, no evidence supports his claim that he used the funds for client development. (The lawyer’s) testimony on this issue was inconsistent and he has no records or receipts to corroborate his assertion. Respondent’s wife testified that she withdrew cash from their checking account and gave it to (the lawyer), but she had no knowledge how (the lawyer) spent the cash.

The lawyer is now employed with DLA Piper and two DLA partners testified at his hearing. According to that testimony, the lawyer appeared before DLA Piper’s executive committee and told them that he made a “horrible mistake” and the firm executive committee voted unanimously to recommend that he be employed by the firm. A partner testified that he monitors the lawyer’s billings and they are appropriate and he was initially concerned about the lawyer joining the firm, however, he is now “fully supportive” of the lawyer’s membership in the firm.

According to the Report, the lawyer’s “mental health issues and his misconduct” were also considered. One doctor opined there was a “loose association” between the lawyer’s personality disorder and his misconduct because the lawyer “was excessively devoted to work as a result of his obsessive-compulsive disorder.” Another doctor stated that the lawyer’s depressive disorder and anxiety disorder led to “tremendous impairment of judgment” which led to the misconduct. The opinions found that the lawyer’s mental health played at least a minor role in his misconduct and have it “some weight” as a mitigating factor.

“We recognize that the amount of Respondent’s falsified expenses is greater than the amounts in the (previously cited) cases but in light of (the lawyer’s) significant mitigation we do not believe a suspension of more than one year is warranted. We believe a one-year suspension addresses the severity of the misconduct and also takes into consideration the substantial mitigating factors.”

“Accordingly, we recommend that (the lawyer) be suspended for one year and until he completes at least twelve months of continuous treatment, from the date of the hearing, with Dr. Spira or another psychiatrist acceptable to the Administrator. The lawyer’s suspension will terminate after one year if he demonstrates his completion of treatment to the Administrator’s satisfaction.”

Bottom line: This lawyer admitted that “he falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take” and received payment for a total of $69,800.00 from the clients for the fabricated receipts. In light of the large amount of the lawyer’s admitted misappropriation, it is surprising that the Board did not recommend disbarment for the misconduct. The Report and Recommendation will now be reviewed by the Illinois Supreme Court which will issue a final 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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Filed under deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer misappropriation, Lawyer misrepresentation, Lawyer misrepresentations to law firm re billings, Lawyer Professionalism, Lawyer sanctions

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