South Carolina Supreme Court bans Florida lawyer from practicing law who solicited over the internet and represented clients in that state

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the South Carolina Supreme Court which prohibited a Florida lawyer not admitted in that state from admission to practice for soliciting business over the internet and representing clients in that state and failing to respond to the allegations. The opinion is: In the Matter of Charles William Berger, Case No. 27377 (April 9, 2014) and the opinion is at: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27377.pdf.

According to the opinion, the South Carolina Office of Disciplinary Counsel (ODC) filed formal charges against the lawyer in May 2013 alleging that, inter alia, he solicited clients in South Carolina through the “Internet” and represented clients in two separate foreclosure matters in South Carolina. The lawyer did not respond to the charges and was deemed to have admitted the factual allegations.

Following an evidentiary hearing in which the lawyer did not appear, a disciplinary hearing panel issued a report recommending that the lawyer: 1) be prohibited from seeking any form of admission in South Carolina for five years; 2) reimburse all fees and costs paid by the South Carolina clients harmed by his misconduct within thirty (30) days of the date of discipline; and 3) be required to pay the costs of the proceedings within thirty (30) days of the date of discipline. The lawyer did not file any exceptions to the report. The opinion stated:

“We find respondent’s misconduct particularly egregious. Although not admitted to practice law in South Carolina, respondent nevertheless engaged in the practice of law in this state. He represented clients in South Carolina. He or his firm provided advice to clients and prepared and filed pleadings, some of which were frivolous, on behalf of his clients. Although he prepared and filed motions, respondent neglected to attend the motion hearings. Moreover, respondent charged and collected unreasonable fees from clients for the minimal work he did perform and then continued to collect fees from clients even after his representation ceased. When disciplinary charges were filed against him, respondent ignored the matter by failing to respond, participate in the investigative process, or appear for the hearing.

If respondent were admitted to practice law in South Carolina, his conduct would warrant disbarment. Since he is not admitted in South Carolina, we find it appropriate to permanently debar him from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing him to seek admission. We further order respondent to fully reimburse all fees and costs paid by the clients in this matter and to pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission within thirty (30) days of the date of this opinion. Should he wish to seek admission in the future, the burden of proof shall be on respondent to establish by clear and convincing evidence that he is of sufficient character and fitness. Under no circumstances shall respondent be eligible to seek admission until he has fully reimbursed his clients for all fees and costs paid in this matter and paid the costs of this proceeding. (emphasis supplied)

Bottom line: Through the magic of the “Internet”, this lawyer was able to obtain and represent clients in foreclosure matters in South Carolina, even though he was not admitted in that state and it appears that he won’t be practicing law in that state anytime in the near future. Multijurisdictional practice has certainly not evolved to include this type of practice and it will be interesting to see if Florida takes any disciplinary action against him.

Let’s 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
http://www.jac-law.com

Maryland discipline opinion imposes reprimand on New York lawyer who practiced immigration law in Maryland, failed to disclose that he was not admitted, and represented clients in Maryland state matters

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Maryland Court of Appeals imposing a public reprimand on a New York lawyer who practiced immigration law in Maryland but failed to disclose that he was not admitted in Maryland.  The opinion is Attorney Grievance Commission of Maryland v. Jude Ambe, Misc. Docket AG No. 6, Sept. Term 2011 (February 22, 2012).

According to the opinion, the lawyer was admitted to practice in New York but was not a member of the Maryland Bar.  After his admission in New York, he maintained a law office in Maryland which, according to the lawyer, was maintained solely for the practice of federal immigration law. The lawyer did not maintain an office in New York.  In December 2009, Maryland Bar Counsel received a complaint against the lawyer unrelated to this matter.  The Bar Counsel wrote to the lawyer and told him that, if his practice was limited only to immigration matters, his letterhead and any signs must indicate that he was admitted in New York but not admitted in Maryland, and that his practice was limited only to federal immigration matters.

The lawyer told the Maryland Bar Counsel that he was aware of the restrictions on his practice and that his letterhead would comply with disclosure requirements, including that he handled only immigration matters.  After receiving the response, Bar Counsel closed the complaint against the lawyer on May 3, 2010; however, in June 2010, an insurance company contacted the Maryland Bar and provided copies of several documents received from the lawyer related to claims received by the insurer from three claimants which included “demand letters” on the letterhead of the firm concerning the lawyer’s “clients.”

The letters sent by the lawyer to the insurance company did not have the required language noting the lawyer’s practice limitations, or that he was admitted in New York and not in Maryland.  The Bar Maryland Counsel also received documents from a second insurance company with a separate demand letter on the same letterhead of the firm related to a client named Daisy Epie and confirming that the firm was representing her. The lawyer acknowledged during the proceedings that it was his intent to act as legal representative for Ms. Epie for purposes of communicating with the second insurance company.

On March 17, 2011, a Petition for Disciplinary Action was filed against the lawyer and an evidentiary hearing was held before a Maryland state judge on September 15, 2011.  After the hearing, the judge found that the attorney had violated Md. R. Prof’l Conduct R. 5.5(a) by representing clients in Maryland state tort law cases while not licensed to practice law in the state.  The judge also found that the lawyer drafted demand letters seeking to settle cases arising from four separate state tort claims that could be filed in court and gave legal advice about the state tort claims which constituted the practice of law and in violation of Md. Code Ann. Bus. Occ. & Prof. § 10-206(a)(1) and Md. R. Prof’l Conduct R. 5.5(a).  The lawyer was also found to have violated Md. R. Prof’l Conduct 5.5(b)(2) by failing to clearly indicate on his business cards that he was not licensed to practice law in Maryland.

The opinion found the above violations and also that the lawyer had made false and misleading communications in violation of Md. R. Prof’l Conduct R. 7.1 by failing to disclose the limitations on his practice.  Maryland Rule 7.1 requires out-of-state attorneys practicing federal law in Maryland to disclose that the lawyer’s practice is limited to federal matters and that the attorney is not authorized to practice law in Maryland and the attorney failed to make such disclosures.  The lawyer’s representation of claimants in Maryland state tort matters and failure to disclose the limitations of his practice was also a violation of Md. R. Prof’l Conduct R. 8.4(b) (committing acts reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer), Md. R. Prof’l Conduct R. 8.4(c) (engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation”), and Md. R. Prof’l Conduct R. 8.4(d) (engaging in “conduct prejudicial to the administration of justice”); however, there was no clear and convincing evidence that the attorney knowingly made false statements of material fact in violation of Md. R. Prof’l Conduct R. 8.1(a).

The lawyer argued that he did not have knowledge that his actions constituted the practice of law but the opinion stated that this did not affect whether he had violated the rules since, under Maryland law, “[c]laimed ignorance of ethical duties . . . is not a defense in disciplinary proceedings.”  Importantly, the opinion noted that a suspension by the Maryland Bar would have no effect since the lawyer had no right to practice law in Maryland.   Although the allegations appear to be quite serious, this lawyer received a relatively light discipline of a reprimand.  Since the lawyer was not admitted to practice in Maryland, he could not be disciplined under their Bar rules and the reprimand was apparently imposed in lieu of potential criminal sanctions for the UPL since the lawyer claimed that he did not know he was engaging in the improper conduct by representing clients in Maryland state tort matters.

Bottom line:  Lawyers who have a federal practice such as immigration, disability, or tax law, or who maintain a law office in a state where the lawyer is not licensed to practice law should carefully consider the disclosure requirements and rules related to the unauthorized practice of law.  Ignorance of the Bar rules is not an excuse (although it may be asserted as mitigation) and there may very well have been a different result if this had occurred in Florida.

Be careful out there!

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