Category Archives: Lawyers and social media

Florida Bar obtains emergency suspension of lawyer for “waging a personal and public war on social media”

Hello everyone and welcome to this Ethics Alert which will discuss the recent emergency suspension of a Florida lawyer for allegedly “waging a personal and public war on social media against attorneys representing clients” and “resort(ing) to terrorist legal tactics.”  The case is: The Florida Bar v. Ashley Ann Krapacs, Case No.: SC-277 Lower Tribunal No(s) 2018-50,829 (17I)FES; 2018-50,851(17I);2019-50,081(17I) and The Florida Bar’s Petition for Emergency Suspension is here: https://efactssc-public.flcourts.org/casedocuments/2019/277/2019-277_petition_72430_petition2dsuspension2028emergency29.pdf

According to the Petition, the lawyer “launched an attack of massive and continuous proportions” on social media and “(c)learly, respondent’s fury has no bounds.” The lawyer’s alleged “terrorist legal tactics” began after she moved to Florida and initiating a petition for a domestic violence injunction against a former boyfriend in Texas and lawyer Russell Williams represented the ex-boyfriend.  The lawyer dismissed the case; however, she then allegedly “began a social media blitz” on Facebook, Instagram, LinkedIn and YouTube.

The lawyer allegedly called  Williams an “old white male attorney” and a “bully attorney” who had threatened to file a motion for sanctions against her if she did not dismiss the case.  She also stated that “opposing counsel flat-out LIED” and the judge ‘didn’t bat an eye.’”.  She also allegedly used the hashtag #holymisogyny on social media when talking about the case and accused the judge of membership in the “Old Boys Club.”

The lawyer also allegedly continued the misconduct in a YouTube video posted after Williams hired lawyer Nisha Bacchus to represent him and filed a lawsuit against the lawyer for Libel, Slander, Malicious Prosecution and Injunctive Relief.  In the video, the lawyer allegedly called Williams “a moron and a sexist and a bully” and said Bacchus was “a backstabbing traitor” for representing “misogynist pigs, misogynist bullies.”  “Also, she’s a door lawyer. Which is basically a lawyer who takes anything that walks in the door in any area of law.  Because you can’t do every area of law and do them all well. You just can’t. Some people try and they end up like Nisha Bacchus who are so hard up that they’ll take anything, including shit like this. So I almost feel bad for her because he’s playing her. It is really obvious from the way that she presents herself that she’ll take anything if the price is right. Or even if it’s not.”  The lawyer also used hashtags #sellout and #womanhater for Bacchus.

The Petition states that the lawyer made multiple posts on Facebook “accusing The Florida Bar of being corruptly influenced by Nisha Bacchus. Bacchus requested a domestic violence injunction against the lawyer after she posted a Home Alone meme showing a shotgun pointed at an individual and added the caption “when opposing counsel tries to use the same exact trick you saw in your last case.”  According to the Petition, “(o)n February 1, 2019, Judge Moon granted an indefinite Final Judgment of Injunction for Protection Against Stalking against (the lawyer) as a result of her actions toward Nisha Bacchus”

The Florida Supreme Court granted the emergency petition in an Order dated February 27, 2019 with 2 of the court’s seven justices dissenting and stating that they would not grant it.  The February 27, 2019 Supreme Court Order suspending the lawyer on an emergency basis is here:  https://efactssc-public.flcourts.org/casedocuments/2019/277/2019-277_disposition_145483_d31i.pdf.  A referee will be appointed.

Bottom line:  This Petition is highly unusual and there may be a question as to whether such conduct constitutes “great public harm” under the Florida bar Rule.  It will certainly be interesting to see how this drama plays out.

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Louisiana Supreme Court disbars former Assistant U.S. Attorney for making anonymous improper internet comments

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary opinion which disbarred a former Assistant U.S. Attorney for making numerous anonymous improper and inflammatory comments on the internet related to pending criminal cases.  The disciplinary case is: Supreme Court of Louisiana v. In Re: Salvador R. Perricone, NO. 2018-B-1233 (12/5/18) and the link to the case is here:  https://www.ladb.org/DR/Default.aspx?DocID=9113&TAB=SC

According to the opinion, the underlying facts in the case were mostly undisputed.  The lawyer began employment as an Assistant United States Attorney with the U.S. Attorney’s Office for the Eastern District of Louisiana in 1991. At all times relevant to these proceedings, the lawyer was a Senior Litigation Counsel and the USAO’s training officer.

During the time period of the allegations in the Complaint, The New Orleans Times-Picayune newspaper maintained an Internet website called nola.com which permitted readers to post comments to news stories using pseudonyms and anonymous identities.

Beginning in November 2007 through March 14, 2012, the lawyer posted numerous comments on various subjects on nola.com, including statements about pending criminal cases to which he and other prosecutors were assigned. “Of the more than 2,600 comments respondent posted, between one hundred and two hundred – less than one percent – related to matters being prosecuted by (the U.S. Attorney’s Office). None of the comments identified respondent by name or as an employee of the USAO. Rather, respondent posted on nola.com using at least five online identities: ‘campstblue’, ‘legacyusa’, ‘dramatis personae’, “Henry L. Mencken1951’, and ‘fed up.’”

The anonymous comments included, inter alia, statements such as:

“Heebe’s (the defendant) goose is cooked.”

“I read the indictment…there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!”

“Looks like Fazzio got a lemon. That book you refer to Mr. Rioux is about all of his losses. The guy is a clown and Fazzio is going down.”

The allegations were reported to the presiding judge who found the lawyer’s conduct improper and reversed the criminal convictions against the defendants and ordered a new trial.  The judge also found that the lawyer “viewed posting of highly-opinionated comments as a ‘public service.”  A disciplinary complaint was opened against the lawyer and, after disciplinary proceedings were completed, the Louisiana Disciplinary Board recommended that the lawyer be found guilty of the Bar Rule violations and disbarred.

The Louisiana Supreme Court opinion rejected post-traumatic stress as mitigation and stated that “the focus of the inquiry in the instant case is on the second factor – namely, whether respondent’s PTSD caused the misconduct at issue. Based on our review of the record, we find no clear and convincing support for the conclusion that respondent’s mental condition may have caused his misconduct.”  After reviewing aggravating and mitigating factors and case law, the opinion further stated:

“In this age of social media, it is important for all attorneys to bear in mind that “[t]he vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1058 (1991). As the Court in Gentile wisely explained, “[a] profession which takes just pride in these traditions may consider them disserved if lawyers use their skills and insight to make untested allegations in the press instead of in the courtroom.” Id. Respondent’s conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.

In summary, considering respondent’s position of public trust as a prosecutor, his knowing and intentional decision to post these comments despite his acknowledgment that it was improper to do so, and the serious harm respondent’s conduct has caused both to individual litigants and to the legal profession as a whole, we must conclude he has failed to comply with the high ethical standards we require of lawyers who are granted the privilege to practice law in this state. The only appropriate sanction under these facts is disbarment.”

Bottom line:  This is another disciplinary case involving a criminal prosecutor improperly using the internet, this time it is a federal prosecutor who made biased and inflammatory comments.  The Louisiana Supreme Court (and other courts) have made it very clear that it will not tolerate lawyers, especially those in a position of “public trust”, who anonymously (or otherwise) make biased, improper, and inflammatory comments on the internet.

Be careful out there.

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.

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers. 

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Florida Bar Professional Ethics Committee approves staff opinion addressing lawyer responses to negative online reviews

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar’s Professional Ethics Committee’s recent approval of Florida Bar Staff Opinion 38049, which addresses lawyer responses to negative online reviews.

On June 15, 2018, the Florida Bar’s Professional Ethics Committee unanimously approved Florida Bar Staff Opinion 38049 which states that a lawyer may post a limited response to a negative online review that the lawyer says falsely accuses her of theft; however, the lawyer may not reveal attorney/client confidences.  The Staff Opinion is here:  file:///C:/Users/jcorsmeier/Downloads/PRR_Corsmeier_-_38049_KNS_responding_to_negative_online_review_PEC_approved.pdf.  The Professional Ethics Committee will not issue a separate opinion.

The lawyer stated in her inquiry that she received a negative online review and would like to respond to the former client’s negative review that the lawyer “took her money and ran” by using the language suggested in Texas Ethics Opinion 662 and adding an “objectively verifiable truthful statement” that the Court entered an order authorizing the lawyer to withdraw as counsel for the former client.

The lawyer stated that she believed the added language was “proportional and restrained, consistent with the Texas Ethics Opinion, directly addressed the allegations of the former client, and should be permissible under the Rules Regulating the Florida Bar and the First Amendment.”  The staff opinion found that the post would reveal confidential information without obtaining the former client’s consent and cited the comment to Florida Bar Rule 4-1.6.

According to the staff opinion, “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

“The inquirer refers to Texas Ethics Opinion 622. That opinion explains that a lawyer may not respond to client’s negative internet review if the response discloses confidential information.  The opinion gives an example of a proportional and restrained response that does not reveal any confidential information:  A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.  The suggested language found in Texas Ethics Opinion 622 would be an acceptable response for the inquirer.”

“An attorney is not ethically barred from responding to an online review by a former client where the former client’s matter has concluded…(h)owever, the duty of confidentiality prevents the attorney from disclosing confidential information about the prior representation absent the client’s informed consent or waiver of confidentiality.”

In 2016, a Colorado lawyer was suspended for six months after he responded to a negative online review and revealed, among other things, that the client had bounced a check and committed unrelated felonies.  There have been other disciplinary cases where a lawyer has been sanctioned for revealing confidences in responding to a negative online review, including: In the Matter of Margrett A. Skinner, Case No. S14Y0661 (Ga. Supreme Court 5/19/14), where a Georgia lawyer received a reprimand for revealing confidences in responding to a negative online review, and In re John P. Mahoney, Bar Docket No. 2015-D141 (2015), where a lawyer received in formal admonishment in 2015.

Bottom line:  As I have blogged and advised in the past, lawyers are prohibited from revealing client confidences unless an exception to the Bar rules applies either requiring or permitting the disclosure.  Permissive exceptions include responding to a Bar complaint, defending a lawsuit filed against the lawyer, and defending against criminal charges involving the representation of a client.  A negative online review is not currently one of those exceptions.

Be careful out there.

Disclaimer:  this Ethics Alert 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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Illinois Disciplinary Board recommends 6 month suspension for lawyer who created false internet dating profile for opposing lawyer

Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Disciplinary Hearing Board Report and Recommendation which recommended a 6 month suspension for a lawyer who created a false Match.com dating profile for an opposing lawyer, falsely denied doing it, and posted false negative internet reviews on the same lawyer.  The case is In re Drew Randolph Quitschau, Commission No. 2017PR00084 (June 6, 2018).  The Report and Recommendation of the Hearing Board is here: https://www.iardc.org/rd_database/rulesdecisions.html.

A disciplinary complaint was filed against the lawyer on August 4, 2017.  The complaint stated the lawyer was a partner in a law firm in Bloomington, Illinois until February 10, 2017 when he was terminated.  The lawyer and another Illinois lawyer named Michelle Mosby-Scott had appeared as opposing counsel in 17 proceedings and both appeared as opposing counsel in seven proceedings between June 2016 and February 2017.

Count I of the complaint alleged that the lawyer engaged in dishonesty by creating a false profile on Match.com in the name of another attorney, without the other attorney’s permission, and making several false representations in that profile and also that the lawyer made a false statement to a partner at his law firm by denying any responsibility for the false profile. Counts II through V alleged that the lawyer engaged in dishonesty by using the Internet to register with organizations or subscribe to materials in the name of the same other attorney, without the other attorney’s permission. Counts VI and VII alleged that the lawyer engaged in dishonesty by posting on the Internet false and negative reviews of the professional ability of the same attorney.  The disciplinary Complaint is here: https://www.iardc.org/17PR0084CM.html

According to the Report, the lawyer admitted to all of the misconduct allegations in his Answer to the complaint and the Hearing Board found that all misconduct charges were proven.  A hearing was held on February 6 and March 2, 2018 and the Report further states:

“The Match.com profile created by Respondent included the following representations that Respondent knew were false: Mosby-Scott was separated from her husband; her children sometimes live with her; she smokes but is trying to quit; she regularly drinks alcohol; she is an agnostic; she is 56 years of age; she does not exercise and enjoys auto racing and motor cross; she has cats; and her favorite hot spots are the grocery store, all restaurants, the Pizza Ranch, all buffets, and NASCAR.

Also in September 2016, Respondent downloaded several photos of Mosby-Scott from her law firm website. He then uploaded those photos to the Match.com profile he created so that the photos could be viewed by the general public. Respondent knew the profile he created in Mosby-Scott’s name was false and knew she had not authorized him to create the profile, user name, password, or email address.

In early October 2016, Mosby-Scott became aware of the Match.com profile in her name. She filed a lawsuit requesting the court to provide her with the Internet Protocol (IP) address associated with the Match.com profile. On December 9, 2016, Match.com provided to Mosby-Scott that IP address. On January 20, 2017, Comcast, the Internet provider for the Thomson & Weintraub law firm gave written notice that the law firm’s IP address was used to create the false Match.com profile for Mosby-Scott. On the same date, Terrence Kelly, a partner at Thomson & Weintraub informed employees that the firm’s IP address was used to create the false profile. He also announced that the firm would be hiring a computer expert to examine all of the firm’s computers. On about the same date, Kelly asked Respondent whether he had created the false profile, and Respondent denied doing so. Respondent knew his statement to Kelly denying that Respondent created the profile in Mosby-Scott’s name was false.”

The Report states that the Board “discussed the seriousness of the misconduct, the aggravating and mitigating factors, and concluded that a fixed term of a suspension, even a lengthy one, will not adequately maintain the integrity of the legal profession or protect the administration of justice from reproach and recommended Respondent be suspended from the practice of law for six months and until further order of the Court.”

Bottom line:  This lawyer admitted all of the bizarre allegations of misconduct in his Answer, including that he had created the Match.com profile “downloaded several photos of (the opposing lawyer) from her law firm website (and) then uploaded those photos to the Match.com profile he created so that the photos could be viewed by the general public” and lying to his law firm by denying that he created it.  He also admitted posting false and negative reviews of the lawyer’s professional ability on the internet; however, there is nothing in the Complaint or Report which discusses the actual motives behind this very strange and inexplicable conduct by the lawyer.  The Report and Recommendation will now be sent to the Illinois Supreme Court for review and 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Herssein law firm files emergency motion with Florida Supreme Court to quash 3rd DCA opinion and order claiming violation of stay

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (December 13, 2017) Motion to Quash filed by the Herssein law firm in the Florida Supreme Court proceeding challenging a Miami-Dade County Circuit Judge’s denial of a motion to disqualify a lawyer who was a former judge and “friend” of the judge on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).  The Herssein law firm’s Motion to Quash is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_115391_motion2dother20substantive.pdf.

The law firm filed an emergency motion on December 13, 2017 asking the Florida Supreme Court to quash a December 13, 2017 3rd DCA opinion quashing two discovery orders and an order granting fees to USAA, claiming that the opinion and order violated the Supreme Court’s Stay Order dated December 7, 2017.

As I previously blogged, the Herssein law firm moved to disqualify the judge from a contract dispute against their client, the United States Automobile Association (USAA) in which a lawyer who represented a non-party USAA employee in the matter was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009), which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Circuit Judge Beatrice Butchko found that she was not required to recuse herself from the case and the Herssein firm asked the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv).  In a December 7, 2017 Order, the Court issued a stay of the lower court proceedings and, in an Order dated December 11, 2017, accepted jurisdiction and provided a briefing schedule.

Bottom line:  In a strange turn of events, the law firm has filed a motion claiming that the 3rd DCA rendered an opinion and order which violate the Florida Supreme Court’s stay of the lower court proceedings and asking the Supreme Court to quash the opinion and order.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert 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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Herssein law firm files emergency motion with Florida Supreme Court to quash 3rd DCA opinion and order claiming violation of stay in Facebook disqualification matter

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (December 13, 2017) Motion to Quash filed by the Herssein law firm in the Florida Supreme Court proceeding challenging a Miami-Dade County Circuit Judge’s denial of a motion to disqualify a lawyer who was a former judge and “friend” of the judge on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).  The Herssein law firm’s Motion to Quash is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_115391_motion2dother20substantive.pdf.

The law firm filed an emergency motion on December 13, 2017 asking the Florida Supreme Court to quash a December 13, 2017 3rd DCA opinion quashing two discovery orders and an order granting fees to USAA, claiming that the opinion and order violated the Supreme Court’s Stay Order dated December 7, 2017.

As I previously blogged, the Herssein law firm moved to disqualify the judge from a contract dispute against their client, the United States Automobile Association (USAA) in which a lawyer who represented a non-party USAA employee in the matter was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009), which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Circuit Judge Beatrice Butchko found that she was not required to recuse herself from the case and the Herssein firm asked the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv).  In a December 7, 2017 Order, the Court issued a stay of the lower court proceedings and, in an Order dated December 11, 2017, accepted jurisdiction and provided a briefing schedule.

Bottom line:  In a strange turn of events, the law firm has filed a motion claiming that the 3rd DCA rendered an opinion and order which violate the Florida Supreme Court’s stay of the lower court proceedings and asking the Supreme Court to quash the opinion and order.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert 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 stays lower court case where judge found that Facebook “friendship” with lawyer was not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (12/7/17) Order of the Florida Supreme Court granting the Herssein law firm’s Motion to Stay the lower court proceeding wherein Miami-Dade County Circuit Judge denied a motion to disqualify a lawyer who was a “friend” on the judge on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).  The Herssein law firm’s Motion for Stay is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_114995_motion2dstay2028proceedings20below29.pdf and the December 7, 2017 Florida Supreme Court Order is here:  https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_order_224307_o03bo.pdf.

As I previously blogged, the Third DCA upheld the decision of Miami-Dade Circuit Judge Beatrice Butchko that she was not required to recuse herself from a case in which she was a Facebook “friend” of the lawyer for one of the witnesses/potential parties.  The lawyer was also a former judge with whom she worked before he resigned as a circuit judge.  This decision departs from a previous 4th DCA opinion and an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).

The Third DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

The Herssein law firm had moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which an attorney named Reyes represented a non-party USAA employee in the matter, who was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009).  That opinion states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The Third DCA opinion states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

The Herssein law firm filed a Notice asking the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv). In support of the request, the Notice states:  “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”

Bottom line:  As I said in my previous blogs, the lower court’s order and the 3rd DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and acknowledges that it is in conflict with that opinion; however, it does provide the rationale that each case should be decided by examining the facts and the relationship.  This would seem to create potential confusion and potential disqualification motions would then have to be decided on a case by case basis.  The Florida Supreme Court has now stayed the lower court matter while it presumably looks at the issue and decides whether to invoke its discretionary jurisdiction.

Again, it would seem to be prudent for judges and lawyers who may appear before them not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection, disclose it to all parties, and (the judge may) possibly provide an option to recuse if the party believes that it could be potentially prejudiced.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert 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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