Category Archives: Lawyer threatening Bar complaint

Indiana lawyer who criticized judge’s “stubbornly injudicious attitude” and threatened Bar complaint against opposing counsel given 60 day suspension

Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion suspending a lawyer for 60 days without automatic reinstatement who accused a judge of having a “stubbornly injudicious attitude” and threatened Bar complaint against opposing counsel. The disciplinary case is In the Matter of Michael E. Halpin, Case No. 45S00-1408-DI-559 (11/10/15), and the disciplinary opinion is here:  http://www.in.gov/judiciary/files/order-discipline-2015-45S00-1408-DI-559.pdf

The lawyer represented the mother in a paternity and custody case in 2012 and 2013.  According to the opinion, “(i)n several written communications between August 7, 2012 and April 12, 2013, Respondent accused Father’s counsel of having arranged venue in Tippecanoe County by fraud, deceit, and trickery; of intentionally violating Mother’s rights as a disabled person in refusing to transfer venue to Lake County; and in engaging in other unprofessional and unethical conduct.  Respondent also wrote to Father’s counsel, ‘[y]our possibly homophobic, racist, sexist clients should not be using the Courts to further that agenda.’”

“In some of these communications, Respondent threatened to file a disciplinary complaint against Father’s counsel unless counsel would accede to Respondent’s demands that venue be transferred to Lake County. Respondent also accused Father of having stolen money from his client and proposed that Respondent and Mother would not press criminal charges if opposing counsel would agree that the paternity case should be transferred to Lake County.”

In a motion filed in April 2013 challenging the denial of a change of venue, the lawyer said the judge who denied the change of venue had a “stubbornly injudicious attitude” toward the court proceeding, and that the judge was “taking off on detours and frolics that ignore the fact that there are laws in Indiana that the court is supposed to follow and uphold.”

According to the opinion, the lawyer’s conduct was prejudicial to the administration of justice and he had acted in an offensive manner.  The hearing officer found the lawyer’s lack of remorse as aggravation, and his lack of prior discipline as mitigation, which the opinion adopted.  The lawyer was suspended for 60 days beginning on December 21, 2015, without automatic reinstatement.

Bottom line: This appears to be another example of a lawyer going too far in “zealously” representing a client and, in this case, the lawyer’s conduct resulted in a 60 day suspension for the lawyer, who had no prior discipline (and also apparently had no remorse).

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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New York City Bar Association Formal Opinion addresses what conduct by a lawyer constitutes a “threat of a disciplinary complaint”

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York City Bar Association Formal Opinion addressing conduct by a lawyer which may constitute a “threat of a disciplinary complaint”.  The ethics opinion is N.Y.C. Bar Assoc. Formal Op. 2015-5 (June 2015) and is online here:  http://www.nycbar.org/ethics/ethics-opinions-local/2015opinions/2196-formal-opinion-2015-5-whether-an-attorney-may-threaten-to-file-a-disciplinary-complaint-against-another-lawyer

In my practice, I am frequently asked about (and I represent lawyers in defending alleged violations of) Florida Bar Rule 4-3.4(g), Rules Regulating The Florida Bar, which states that a lawyer must not “present, participate in presenting, or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.”

This recent New York City Bar Association formal opinion examines New York Rules of Professional Conduct 3.4(e), which states that a lawyer “shall not … present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter”.

The opinion states that a lawyer who “merely” advises another lawyer “that his conduct violates a disciplinary rule or could subject them to disciplinary action” would not violate the rule; however, including “a statement that (the lawyer) intend(s) to file disciplinary charges unless the other lawyer complies with a particular demand” constitutes an improper threat which violates the New York disciplinary rule.

The opinion further states that “’before making a report’ to the Bar, ‘an attorney is permitted to confront her adversary with evidence of misconduct to confirm that an ethical violation has occurred’ (emphasis supplied and citation omitted)  Further, the attorney may ‘ask whether opposing counsel denies the misconduct or can cast doubt on whether it occurred.  What the attorney may not do is condition the handling of a mandatory grievance on compliance with a particular demand. So, if after confronting the opposing lawyer with evidence of the misconduct, the attorney is convinced that the other lawyer in fact committed the misconduct, it would be improper, in the words of Professor Simon, to ‘invit[e] the opposing lawyer to bargain away the grievance.’”

The opinion concludes with the following admonition:

An attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules of Professional Conduct (the “New York Rules” or “Rules”). Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purpose other than to embarrass or harm another person or that violates other substantive laws, such as criminal statutes that prohibit extortion.

Bottom line:  The Bar rules in most jurisdictions (including Florida) prohibit lawyers from threatening to present disciplinary charges against another lawyer solely to obtain an advantage in a civil matter.  This opinion concludes that, under the New York disciplinary rule (which only addresses threatening criminal charges), a lawyer is permitted to confront the other lawyer with evidence of ethical misconduct to confirm that an ethical violation has occurred; however, if the lawyer states that he or she intends to file disciplinary charges unless the other lawyer complies with a demand, this would be an improper threat in violation of violate the New York rule.

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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