Category Archives: Unauthorized practice of law

Ticket Clinic law firm and individual defendants file Motion for Sanctions for frivolous lawsuit against TIKD in federal lawsuit

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent Rule 11 Motion For Sanctions for Filing Frivolous Lawsuit filed by the Ticket Clinic Law Firm (Gold and Associates) and the individual defendants.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court, Southern District of Florida-Miami Division).  The Motion for Sanctions is available on the PACER federal document system here:  https://www.pacer.gov/login.html (subscription required).

As I previously blogged, TIKD Services, LLC filed the federal lawsuit against The Florida Bar, the Ticket Clinic law firm, and other individuals in the U.S. District Court, Southern District of Florida on November 8, 2017.  The TIKD app is set up to allow an individual who has received a traffic citation to upload a photo of the citation and pay a fixed fee.  TIKD then retains an attorney to represent that individual and, if that individual receives points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.  The TIKD business model is apparently based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by the individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment; however, TIKD states that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”  A complaint was filed by members of the law firm with The Florida Bar alleging that TIKD was engaging in the unauthorized practice of law (UPL).  That complaint is currently pending and the Bar has recommended further proceedings.

TIKD then filed a lawsuit in federal court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The defendants include The Florida Bar, attorney Mark S. Good, who founded The Ticket Clinic law firm, and other individuals.  According to the Complaint, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story.  A few months later, attorneys with The Ticket Clinic, a Miami law firm that handles traffic tickets, threatened to report two of TIKD’s lawyers to The Florida Bar if they continued to work with TIKD.

A state lawsuit was later filed and the parties reached a settlement in that matter; however, TIKD alleges in the Complaint that The Florida Bar and the Ticket Clinic law firm continued to make a “concerted effort” to put it out of business, and that the firm’s lawyers continued filing “baseless ethics complaints” against attorneys who represent TIKD customers.

The recent Motion for Sanctions alleges that the claims against the law firm and the individual defendants are baseless and fail to state a cause of action, that there is no subject matter jurisdiction, that The Florida Bar has immunity, which immunizes the individual defendants, that the individuals have immunity on other grounds, that the lawsuit is frivolous on other grounds, and that the lawsuit should be dismissed and the Plaintiffs should be sanctioned.

Bottom line:  As I have previously stated, this is one of the first cases filed in Florida (and possible in any jurisdiction) which directly alleges that a State Bar’s procedures violate the Sherman Antitrust Act in reliance upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  A Motion for Sanctions under Federal Rules of Procedure 11 has now been filed seeking sanctions against TIKD and the dismissal of the Complaint against the law firm and individual defendants.

Stay tuned…

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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Filed under Florida Bar, Florida Bar TIKD antitrust lawsuit, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, North Carolina Dental Board, North Carolina dental whitening case and UPL, TIKD UPL Bar request for Florida Supreme Court injunction, TIKD v Florida Bar Motion for Sanctions, TIKD v. Florida Bar antitrust federal lawsuit, TIKD v. Florida Bar motion to disqualify ex-president, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit, UPL North Carolina federal judge opinion on regulation of UPL

Federal lawsuit filed by patent firm alleges, inter alia, that nonlawyer LegalZoom employees engaged in UPL on trademark applications

Hello everyone and welcome to this Ethics Alert which will discuss the recent California federal lawsuit filed by Legalforce law firm which alleges, among other things, that nonlawyers at LegalZoom engaged in the practice of law on trademark applications.  The case style is Legalforce RAPC Worldwide, P.C.et al v. LegalZoom.com, Inc., et al, Case No. 5:17-cv-07194-NC (U.S. District Court, Northern District of California-San Jose Division).  The Complaint is here: https://www.scribd.com/document/367565873/Complaint-LegalForce-RAPC-v-LegalZoom

The lawsuit was filed in the California Northern District Court on December 19, 2017 by Legalforce, which states that it is “the largest law firm filer of trademarks before the USPTO in each of the last 5 years”.  The Complaint alleges that LegalZoom has engaged in “unauthorized practice of law, false advertising, unfair competition and other claims with respect to preparation and filing of trademark applications” before the U.S. Patent and Trademark Office.  The U.S. Patent and Trademark Office and the State Bars of Arizona, California and Texas are also named as defendants.

The lawsuit claims that the plaintiffs applied for two trademarks through LegalZoom and that the services provided constitute the practice of law. The complaint states that LegalZoom “trademark document specialists” who were not lawyers “provided legal advice to the plaintiffs by selecting classification and modifying the goods and services description from the template thereby applying specific law to facts.” The plaintiffs state that they recorded and transcribed relevant conversations with LegalZoom employees.

The lawsuit seeks a declaration that LegalZoom’s actions constitute the practice of law and that the company engages in false and misleading advertising and unfair competition, and requests a permanent injunction prohibiting LegalZoom from engaging in the practice of law and other acts, compensatory and punitive damages, and restitution.

Bottom line: This patent law firm is suing LegalZoom for, among other things, engaging in the unlicensed practice of law and false advertising in federal court.  The lawsuit also names USPTO, a federal agency, and two state Bars as defendants.  If the court ultimately grants the injunction and rules in favor of the law firm (or refuses to grant the injunction and rules in favor of LegalZoom), it would be a very significant development in this area.

Stay tuned…and 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.

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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Filed under joe corsmeier, Joseph Corsmeier, LegalForce v. LegalZoom federal lawsuit alleging UPL and deceptive advertising, LegalZoom, LegalZoom federal lawsuit, Unauthorized practice of law

Federal district judge dismisses lawsuit alleging that the North Carolina’s regulation of UPL is unconstitutional

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of a federal district judge in North Carolina dismissing a non-profit corporation’s claims that the state’s UPL statute is unconstitutional.  The case is: Capital Associated Industries Inc. v. Josh Stein et al., Case No. 1:15-cv-00083 (U.S. District Court, Middle District of North Carolina).  The September 19, 2017 order and opinion is here: http://www.abajournal.com/images/main_images/NCBar.pdf

A corporation called Capital Associated Industries Inc. (CAI) filed the lawsuit after the North Carolina State Bar issued a proposed ethics opinion which found that CAI’s plan to provide legal services would constitute unlawful UPL.

According to the order and opinion of U.S. District Judge Loretta Biggs, CAI is a non-profit (and non-legal) corporation which provides human resources services to members, who pay annual dues. The corporation proposed to provide employment-related legal advice through its own lawyers as part of its membership services. It also proposed charging a separate fee of $195.00 an hour for other legal services, including drafting employment agreements and potential representation before the Equal Employment Opportunity Commission.

CAI argued that North Carolina’s UPL Statutes, as applied to them, “violate CAI’s right to substantive due process because the statutes are not rationally related to any legitimate governmental interest.  The State Bar responds that the NC UPL Statutes “are rationally related to North Carolina’s interest in avoiding potential ‘conflicts of interest and loyalty,’ as well as its interest in avoiding the ‘impairment of attorney independence.’”

The order and opinion held that the statute was sufficiently related to the government’s interest in avoiding potential conflicts of interest and loyalty, and in avoiding the impairment of attorney independence.  “North Carolina could rationally decide that nonlawyers would be more likely than lawyers to encourage the attorneys whom they supervise to violate the ethical canons that govern the legal profession.”

CAI also argued that the UPL Statutes “violate the freedom of speech guaranteed by the First Amendment, as applied to its proposed provision of legal services.  Specifically, CAI argues that the UPL Statutes restrict CAI’s speech on the basis of its content; that the UPL Statutes prohibit CAI from speaking on the basis of its corporate identity; and that this restriction on its speech cannot survive strict scrutiny.  The State Bar argues that the UPL Statutes operate as permissible regulation of a profession and not a restriction on speech that is entitled to First Amendment protection.”

The order and opinion stated that the UPL statute is not subject to strict First Amendment scrutiny since CAI’s proposed communications with members on employee legal questions are professional speech.  “The Fourth Circuit has held that under the professional speech doctrine, ‘a state’s regulation of a profession raises no First Amendment problem where it amounts to ‘generally applicable licensing provisions’ affecting those who practice the profession.’”  Pursuant to same, CAI “has no First Amendment right to advertise legal services since its right to provide such services is unlawful under the (UPL) statutes.”   According to media reports, CAI’s attorney has stated that the organization will appeal to the Fourth Circuit Court of Appeals.

Bottom line:  This opinion appears to strengthen the regulation of UPL by state Bars such as the North Carolina Bar.  The opinion also analyzes the constitutional scrutiny that applies in cases involving the regulation of professional speech “where it amounts to ‘generally applicable licensing provisions’ affecting those who practice the profession.”

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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Filed under joe corsmeier, Joseph Corsmeier, U.S. Constitution and UPL regulation- professional speech and application of UPL rules, Unauthorized practice of law, Unlicensed practice of law, UPL and professional speech, UPL North Carolina federal judge opinion on regulation of UPL

Online mechanic’s lien settlement software company Zlien settles Ohio unauthorized practice of law complaint

Hello and welcome to this Ethics Alert blog which will discuss the recent (July 20, 2016) Order approving the settlement of an Ohio unauthorized practice of law (UPL) complaint filed by the Cleveland Metropolitan Bar Association (CMBA) against an online mechanic’s lien settlement software maker called Express Lien, Inc. (d/b/a Zlien) and dismissing the complaint.  The case is Cleveland Metropolitan Bar Association v. Express Lien, Inc. dba Zlien et al, case number Case No. UPL 15-01.  The Ohio Supreme Court UPL Board’s Order approving the settlement and dismissing the complaint is here:  http://www.supremecourt.ohio.gov/Boards/UPL/settlement/UPL15-01.pdf

The CMBA filed the UPL complaint in May 2015 against Express Lien Inc. (Zlien) alleging that it was enabling non-lawyers to practice law in Ohio.  Zlien claimed that its platform streamlined the process of filing lien documents by facilitating the filing of those documents by its users and that it was not engaging in or enabling UPL.

According to the Order, the UPL complaint alleged that Zlien was illegally practicing law when Zlien “Director of Client Experience” Gretchen Lynn allegedly prepared, signed and attempted to file a lien against an Ohio property on behalf of Midwest Interiors LLC. The complaint stated that Ms. Lynn was not a lawyer in Ohio and Zlien was not registered with the Ohio Secretary of State.

The Cuyahoga County Fiscal Office rejected the lien because it was filed 33 days past the 75-day window to file.  The CMBA then initiated an investigation which led to the filing of the complaint.  Zlien stated that the affidavit was completed using aggregated information and it is “a technology powered scrivener” that “merely copies verbatim” user provided information.

In response to the UPL complaint, Zlien file a lawsuit in Louisiana federal court in July 2015 against the CMBA, the Ohio State Bar Association, and other entities and individuals alleging, inter alia, that the Bar was attempting to unconstitutionally restrict commercial or political speech and engaging in unfair trade and competition practices in applying and enforcing Ohio’s UPL statutes.  Zlien’s federal lawsuit is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/express_lien_complaint.authcheckdam.pdf

Zlien’s federal complaint cited to the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners which struck down the enforcement of regulations by North Carolina’s dental board, which had attempted to prohibit teeth whitening by non-dentists.  In that case, the Supreme Court stated that the regulation of a profession by licensees in the same profession violated federal antitrust laws.

The UPL settlement agreement states that Zlien has agreed not to sign any mechanic’s lien affidavits unless it is a party or can practice law in the jurisdiction.  The company also agreed not to select the property descriptions inserted in lien affidavits or advise customers on which property descriptions to use.  Zlien also agreed to require its users to sign generated lien documents themselves rather than appointing the company to sign for them through power of attorney.

Zlien issued a public statement through its chief legal officer related to the settlement: “Technology has advanced to the point where it can put groups that change at a slower pace – like bar associations – in unfamiliar and potentially uncomfortable situations.” “Software can’t practice law, and people still need lawyers for certain tasks, but things that technology can do are not the things for which lawyers are required.”

Bottom line:  This is more fallout from the U.S. Supreme Court’s 2015 North Carolina dental whitening decision and also involves an online legal document generator/provider. The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015) and the opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.  My Ethics Alert blog discussing the case is here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/  and a recent list of other cases which have been filed after that decision is here:  https://media.nasba.org/files/2015/12/2016-0714-Board-Immunity-Cases-Table.pdf

Stay tuned and 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.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

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, Bar antitrust, BAR UPL antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Non-lawyer practicing law, North Carolina Dental Board, North Carolina dental whitening case and UPL, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit, Zlien UPL lawsuit and settlement

Pennsylvania woman who impersonated a lawyer for 10 years is sentenced to 2 to 5 years in prison

Hello and welcome to this Ethics Alert blog which will update my March 30, 2016 blog and discuss recent sentence of a Pennsylvania woman who impersonated a lawyer for 10 years.  The case is Commonwealth of Pennsylvania v. Kimberly M. Kitchen, case number CP-31-CR-0000274-2015 (Court of Common Pleas of Huntingdon County).  The court docket is here:  https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-31-CR-0000274-2015

According to media reports, the woman was a partner at a Pennsylvania law firm when her actions were discovered later that year.  In the winter of 2014, attorney Gregory Jackson was creating a seniority list for the Huntingdon County Bar Association (for whom the lawyer had previously served as President) but could not find any information on her indicating that she was a lawyer.  He then reported her.

She had spent the previous 10 years impersonating a lawyer when the state attorney general’s office brought criminal charges against her in 2015.  According to the criminal charges and media reports, the individual created fictitious bar examination results and a law license and also a false check for the state attorney registration fee.  She also created a false e-mail purportedly showing that she attended Duquesne University law school.

The individual had handled estate planning for clients and was made a partner at her firm.  Her law firm biography page (which has been deleted) claimed that she spent a decade as a paralegal at another firm in Pittsburgh and that she graduated summa cum laude from Duquesne law school.

On March 24, 2016, the individual was found guilty of misdemeanor UPL, misdemeanor forgery, and felony tampering with a public record/information.  On July 19, 2016, the judge sentenced her to two to five years in prison.  According to online media reports, the prison sentence was “on the higher end of the sentencing guidelines”.  The judge stated that there were several reasons for the sentence, including: “not only did she pretend to be a lawyer but she pretended to be the best and biggest around.”

Two of the media reports are here: http://www.abajournal.com/news/article/one_time_law_firm_partner_without_law_degree_is_sentenced_for_unlicensed_pr and here: http://wjactv.com/news/local/huntingdon-county-woman-exposed-as-a-fraudulent-lawyer-sentenced-to-prison

Bottom line:  This individual appears to have been successful in boldly impersonating an attorney and pretending “to be the best and biggest around” for over ten years.  She was made a partner and served as a county Bar president using the false credentials and a nonexistent license to practice.  She was ultimately discovered and will now serve 2 to 5 years in prison.  The takeaway:  lawyers must be very wary and be sure to fully investigate any lawyer that are being considered for employment.  It is easy to do this in Florida, just go here: Florida Bar find a lawyer.

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.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

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

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

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Filed under fraud, joe corsmeier, Joseph Corsmeier, Non lawyer fraud impersonating lawyer prison, Non lawyer impersonating lawyer criminal conviction, Unauthorized practice of law, Unlicensed practice of law, UPL fraud impersonating lawyer

Pennsylvania woman who posed as a lawyer for 10 years is convicted of UPL, forgery, and records tampering

Hello and welcome to this Ethics Alert blog which will discuss recent conviction of a Pennsylvania woman who posed as a lawyer for 10 years using fictitious documents and another lawyer’s license number.  The case is Commonwealth of Pennsylvania v. Kimberly M. Kitchen, case number CP-31-CR-0000274-2015 (Court of Common Pleas of Huntingdon County).  The court docket is here:  https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-31-CR-0000274-2015

According to media reports, the woman had been named a partner at a Pennsylvania law firm in April 2014 when her actions were discovered later that year.  She had spent the previous decade working as a lawyer by the time the state attorney general’s office brought charges against her in 2015.  She had also served as served as president of the local county bar association.

According to the criminal charges and media reports, the woman created fictitious bar examination results and a law license and a false check for the state attorney registration fee, and she also created a false e-mail purportedly showing that she attended Duquesne University law school.

The woman handled estate planning for more than 30 clients and even served as president of the county bar association for a time. She made partner at her firm before the fraud was discovered.  Her biography page (which has been deleted) said that she spent a decade as a paralegal at another firm in Pittsburgh and that she graduated summa cum laude from Duquesne law school in Pittsburgh.

A former county bar association president told the Huntingdon Daily News, which first reported on the matter, that by specializing in estate planning on inheritance court documents, the woman was able to stay out of the courtroom.

According to a recent Wall Street Journal report, the woman’s attorney said she would be considering an appeal since, in order to prove the most serious charge of records tampering, prosecutors had to show that someone “relied on the deceit to their detriment.”  The lawyer contends that nobody was harmed by the deception since “apparently everyone was satisfied with (her services) for at least a decade.”  The lawyer also stated that  “(n)obody ever challenged her credentials.”

The judge found the lawyer guilty of misdemeanor UPL, misdemeanor forgery, and felony tampering with a public record/information on March 24, 2016 and did not immediately schedule sentencing.

Bottom line:  This individual appears to have been successful in posing as an attorney for over ten years in Pennsylvania and was made a partner in a law firm and served as a local Bar president using false credentials and a false law license.  Lawyer be wary and be sure to fully investigate any lawyer that you hire.

…and be careful out there.

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 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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer unlicensed practice of law, Non-lawyer practicing law, Unauthorized practice of law, Unlicensed practice of law

Ohio Supreme Court permanently disbars lawyer who was videotaped in court practicing law while indefinitely suspended

Hello and welcome to this Ethics Alert blog which will discuss another recent Ohio Supreme Court opinion disbarring a lawyer who was caught on video representing a client in court 3 times, beginning less than three months after his license was indefinitely suspended.  The case is Cleveland Metro. Bar Assn. v. Pryatel, Slip Opinion No. 2016-Ohio-865. (March 9, 2016).  The disciplinary opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-865.pdf and the link to the oral argument in the case is here: http://www.ohiochannel.org/video/case-no-2015-1005-cleveland-metropolitan-bar-association-v-mark-r-pryatel.

According to the opinion, the lawyer was indefinitely suspended in April 2013 for multiple violations of lawyer disciplinary rules, including misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  The lawyer was subsequently recorded on video and audio tapes representing a client (Richard Brazell) in court on three separate occasions in June and July 2013.

The lawyer first attended a probation violation hearing and stood with the client, admitting the probation violation on the client’s behalf, and speaking for the client.  The client’s girlfriend and stepfather testified before the professional conduct board that they paid the lawyer $450.00 for the representation (for both the lawyer’s previous representation and for future representation) and that the lawyer did not inform them that his license was suspended.

Two days after the probation hearing, the lawyer appeared with the client a second time on unrelated charges in another court.  An audio recording of the client’s arraignment indicated the lawyer spoke on the client’s behalf.  He told the magistrate that he was not the client’s attorney and the client was representing himself as the two worked out their business relationship. The magistrate told the board that the lawyer did not indicate that his license was suspended.

About a month later, the lawyer attended a hearing with the client a third time, answered questions on his behalf, and entered a plea to a violation of probation for the client before the judge.  The prosecutor and judge in that case both told the board that they believed that the lawyer was representing the client.  The judge became suspicious and asked his assistant to research the lawyer and found out that he was suspended.

When confronted with the allegations that he had represented the client in a deposition in the Bar matter, the lawyer denied under oath that he appeared with the client at the probation violation hearing or municipal court proceedings, and claimed that he told the client’s family that his license was suspended and that he was not paid for his legal work.  The opinion stated:  “All of these statements (by the lawyer) were later contradicted by testimonial, video, audio, and documentary evidence presented at the disciplinary hearing.”

The board found the following aggravating circumstances: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary process, the submission of false statements during the disciplinary process, and a refusal to acknowledge the wrongful nature of the conduct.  Although the board acknowledged that the lawyer had been involved with the Ohio Lawyers Assistance Program, it found no mitigating factors.

The lawyer objected to the board’s finding that he practiced law while suspended and argued that his actions in the second appearance did not constitute the “practice of law” since he did not advocate for the client, cross-examine any witnesses, cite legal authority, or handle any legal documents.  The opinion rejected that argument and cited Cleveland Bar Assn. v. Comp Management, Inc., a 2006 case stating that the practice of law is not limited to advocacy or filing of legal documents, but also includes representation before a court, preparation of legal documents, management of client actions, all advice related to law, and all actions connected with the law taken on a client’s behalf.  “Here, the evidence demonstrated that the lawyer accompanied the client to the court, stood with him before the bench, spoke on his behalf, waived his legal rights as a criminal defendant, and entered a plea for him.  Under any definition, the lawyer’s appearance on behalf of the client constituted the practice of law.”

The lawyer claimed that he had been “sandbagged” by the bar association which investigated the Bar matter because the case against him did not originally contain the video of his appearance at the probation hearing. The bar association later supplemented its case with the video, and the lawyer had more than two weeks to review it before his disciplinary hearing. The opinion found that the lawyer did not provide any explanation to support the allegation that the introduction of the video prevented him from adequately defending himself against the charges.

The lawyer argued that he should not be disbarred because his actions involved a single client who benefited from his assistance and that he helped the client for “sympathetic and altruistic reasons.”  He also argued that he cooperated during the disciplinary process and had a history of providing quality legal services to indigent clients, and other lawyers charged with the same misconduct were not disbarred.  His lawyer argued at the oral argument that he had psychological and/or other issues and was participating in Ohio’s lawyer assistance program, and that the indefinite suspension should be again imposed.

The majority of the justices disagreed and permanently disbarred the lawyer stating:  “Less than three months after our order forbidding Pryatel to appear on behalf of another before any court, he represented a client in three court proceedings. As the board found, his actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”  Three justices dissented, stating that the indefinite suspension should be continued.

Bottom line: This lawyer had the apparent audacity to represent a client on 3 different occasions and in 2 separate cases beginning less than 3 months after he was indefinitely suspended from the practice of law for, among other things, misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  As the opinion states: “(the lawyer’s) actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”

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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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