Category Archives: Privilege

D.C lawyer disbarred for, inter alia, filing frivolous motions, failing to appear, introducing confidential records into public record, and fabricating appeal record

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Washington, D.C. Court of Appeals opinion disbarring a lawyer who, inter alia, filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness, failed to file certain motions which prejudiced the client, introduced the client’s confidential medical records into the public record, and sought and received a six month continuance of the client’s trial without her consent. In another matter, the lawyer failed to include fact witnesses in a pretrial statement which caused his client’s case to be dismissed and then fabricated a pretrial statement on appeal. The opinion is In re Ellis S. Frison, Jr., Case No. 13-BG-545 (D.C. Ct. of Appeals 4/24/14) and the opinion is here: http://www.dccourts.gov/internet/documents/13-BG-545.pdf

According to the opinion, the lawyer represented a client in an employment discrimination suit starting in September 2005, until she discharged him in November 2008. During the representation, the lawyer filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness who was hostile to the client, failed to file certain motions which prevented the client from presenting evidence for her retaliation claims, placed the client’s confidential medical records into the public record without justification, and sought and received a six month continuance of the client’s trial without consulting with her or obtaining her consent.

After the client discharged the lawyer in November 2008, he threatened her and refused to release her file to her. She then filed a Bar complaint and initiated an arbitration claim seeking repayment of some of the fees she had paid to the lawyer. The lawyer then submitted inconsistent bills that he had never given the client and which inflated the amount owed under the initial fee agreement.

After an award was entered against the lawyer, he filed a civil suit against her using the same falsified billing records that the arbitrator had rejected. He also submitted similar falsified billing records to the Bankruptcy Court, where he had filed a claim against the client. The opinion states that “(the lawyer) repeatedly submitted (the client’s) confidential medical records subject to attorney-client privilege into the public records in these and other proceedings.

In a second matter, the lawyer represented a client and her minor daughter in a personal injury action. He failed to identify any fact witnesses in the joint pretrial statement and was not able to put any fact witnesses on at trial to establish that the defendant had caused the client’s daughter’s injuries. The court then entered a judgment as a matter of law for the defendant. On appeal, respondent submitted a fabricated joint pretrial statement that included fact witnesses, and told the appeals court (the same court that issued this opinion) at oral argument that he had sent the fabricated document to opposing counsel prior to trial.

Bottom line: This lawyer certainly stretched the limit of how many Bar rules can be found to have been violated in a single Bar discipline matter. The misconduct also occurred at the trial and appellate levels and, amazingly, the lawyer fabricated a document in an appeal before the appellate court which determines discipline in D.C. Bar cases.

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

Advertisements

1 Comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Attorney/client confidentiality, Attorney/client privilege and confidentiality, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements in response to Bar complaint, Lawyer false testimony, Lawyer lack of competence, Lawyer misrepresentation, Lawyer Professionalism, Lawyer sanctions, Privilege

Illinois Hearing Board recommends 5 month suspension for lawyer who posted undercover video related to client on Youtube and alleged that the drugs were planted

Hello and welcome to this Ethics Alert blog which will discuss the recent report and recommendation of an Illinois disciplinary hearing board that an Illinois lawyer be suspended for 5 months for posting an undercover video of an alleged drug transaction of his client on Youtube and alleged that the drugs were planted.  The disciplinary case is In re Jesse Raymond Gilsdorf, Commission No. 2012PR00006 (June 4, 2013).  The disciplinary Complaint is here: https://www.iardc.org/12PR0006CM.html and the Board’s Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10978.    

According to the Report and Recommendation, “the charges of misconduct arose out of  the Respondent knowingly posting on an Internet site, and showing to others, a DVD video he received from the state’s attorney while representing a criminal  defendant.  The video showed the undercover drug transaction between Respondent’s  client and a confidential police source.  The Respondent entitled the video ‘Cops and Task Force Planting Drugs,’ which was false.  By posting the video while his client’s criminal case was pending, Respondent intended to persuade residents of the county that the police or other government officials acted improperly in the prosecution of his client.

The Hearing Board found that the Respondent engaged in the misconduct charged in both counts.  Specifically, he revealed information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation; failed to reasonably consult with the client about the  means by which the client’s objectives are to be accomplished); made extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding; engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.”

The report and recommendation of the hearing board will now be considered by the Illinois disciplinary review board and will ultimately be reviewed by the Illinois Supreme Court for a final disciplinary opinion.

Bottom line: This is another example of the use (or misuse) of social media potentially resulting in a lawyer’s discipline.  Lawyers must be aware of the requirement of maintaining client confidentiality and the risk of making statements that are false about a client’s case as well as the inherent dangers of using social media in the lawyer’s practice.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer discipline social media misuse, Lawyer sanctions, Lawyers and social media, Lawyers and social media youtube, Privilege

Facebook litigation expert’s inadvertent production of e-mail results in waiver of privilege due to lawyer’s failure to supervise and take prompt steps to rectify the error

Hello and welcome to this Ethics Alert blog which will discuss the recent strongly worded federal District Judge’s opinion finding that a retained expert’s inadvertent disclosure of privileged information in an e-mail waived the attorney/client privilege since the lawyer who retained the expert failed to properly supervise the expert and failed to promptly “rectify” the error.  The case is Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 1392965 (W.D.N.Y. Apr. 19, 2012).

In this case, plaintiff’s counsel retained an information technology expert to recover a specific document from a computer at the plaintiff counsel’s office and instructed the expert to produce that document to the digital forensic consulting firm retained by the defendants; however, the expert inadvertently copied and produced (on a compact disc) both the document he was instructed to recover and a privileged e-mail to which it was attached.

The defendants’ consultant stated that he did not review the CD and forwarded the e-mail and the attachment directly to defendant’s counsel, with a short note.  Approximately two weeks later, the consulting firm disseminated the e-mail in its native format to all parties to the action.  Over 2 months after the dissemination, the plaintiff, through counsel, claimed that the e-mail was inadvertently produced and requested it be returned or destroyed.

According to the opinion, Fed. R. Evid. 502 states that the determination as to whether an inadvertent production will result in waiver is dependent upon several factors, including whether “the privilege holder took reasonable steps to prevent disclosure” and whether “the privilege holder took reasonable steps to rectify the error.”  The opinion states as follows:

“With regard to the first element, (plaintiff’s counsel), by failing to personally supervise (the expert’s) retrieval of the LawsuitOverview.pdf filed from the computer in (plaintiff’s counsel’s) law office in Hornell, while (plaintiff’s counsel) was in California, also failed to take reasonable steps to prevent the inadvertent disclosure of the March 6, 2011 email.  Although (plaintiff’s counsel) cannot be admonished for retaining the services of (the expert) to retrieve from (plaintiff’s counsel’s) Hornell law office, while (plaintiff’s counsel) was in California, information responsive to Defendants’ discovery requests, (plaintiff’s counsel) could have had the expert) first forward any documents to (plaintiff’s counsel) in California where (plaintiff’s counsel) could have reviewed the documents to ensure there was no extraneous, privileged materials attached.  If (plaintiff’s counsel’s) physical presence in Hornell was necessary to properly and thoroughly oversee the production of evidence, (plaintiff’s counsel), as lead counsel in this high-profile case, should have made himself present to do so, and (plaintiff’s counsel) has not proffered any explanation as to why his presence was not possible.”

The opinion also found that plaintiff was “unable to establish he took reasonable steps to remedy the inadvertent disclosure” since more than two months passed between the dissemination of the privileged e-mail and the request for the e-mail’s return or destruction; therefore the privilege was waived.

Bottom line:  This is an example of how the retention of experts in a case can potentially go awry.  As we all know, lawyers are required to properly supervise all non-lawyer employees and agents (including retained experts).  The opinion in this case found that the lawyer failed to properly supervise the expert and “rectify” the error; therefore, the client’s attorney/client privilege with regard to that document was waived.

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

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney/client privilege and confidentiality, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Privilege