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Washington State Bar suspends some ethics opinions because of antitrust concerns arising from 2015 U.S. Supreme Court opinion

Hello and welcome to this New Year’s Eve 2015 Ethics Alert blog which will discuss the recent decision of the Washington State Bar to suspend some ethics opinions because of antitrust concerns arising out of the U.S. Supreme Court’s February 2015 opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  I previously blogged about the Supreme Court’s decision here: USSC NC dental licensing opinion, the LegalZoom antitrust lawsuit in North Carolina based upon the USSC opinion here: LegalZoom filed antitrust lawsuit against NC Bar and the settlement of that lawsuit here:  LegalZoom settles antitrust lawsuit against NC Bar.

According to a recent ABA Journal article, the Washington State Bar Association has advised its ethics committee to stop issuing ethics opinions which could be interpreted as having the effect of restraining trade in the legal services market.  The bar stated that it suspended the opinions so it could “proceed very deliberately” in the wake of the U.S. Supreme Court’s February 2015 opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission. 

That U.S. Supreme Court decision permitted an antitrust action against the North Carolina state dentistry board for its decision prohibiting non-dentists from whitening teeth to proceed. The opinion stated that when a state board is controlled by active market participants in the market it regulates, state-action antitrust immunity cannot be applied unless the restraint of trade is affirmatively expressed by state policy and the policy is actively supervised by the state.

Bottom line:  This is more fallout from the 2015 USSC Dental Board decision.  As I have stated in my previous blogs, there have been lawsuits against state Bars in the past attacking the entity’s state action immunity.  The Supreme Court opinion refers to three specific cases and appears to suggest that these cases should be interpreted to mean that only the actions of a state entity which is actively supervised by the state (i.e. the Supreme Court in the case of a state Bar) have antitrust immunity and the rest of the entity’s actions may not have such immunity.

I wish you and yours a very happy and healthy 2016!

Disclaimer:  this e-mail 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

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 .S. Supreme Court, Attorney Ethics, Bar antitrust, BAR UPL antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer ethics, LegalZoom, LegalZoom antitrust, North Carolina Dental Board, Uncategorized

Ohio lawyer suspended indefinitely after conviction for filing false documents with IRS and falsifying e-mail in malpractice action

Ohio lawyer suspended indefinitely after conviction for filing false documents with IRS and falsifying e-mail in malpractice action.

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The Florida Bar’s Board of Governors approves guidelines for advertising past results which prohibit past results on billboards and TV and radio advertisements

Hello and welcome to this Ethics Alert which will discuss the Guidelines for Advertising Past Results which were approved by the Florida Bar’s Board of Governors (BOG) on December 13, 2013 (and revised on 1/17/14) as well as the decision of the Bar’s Standing Committee on Advertising to disapprove 15 and 30 second television advertisements which advertised past results at its January 23, 2014 meeting (as reported in the February 15, 2014 issue of The Florida Bar News).  The guidelines state that the Bar “generally will not approve” billboard and television and radio advertisements since they “do not lend themselves to effective communication” of the disclaimers that are required under the revised lawyer advertising rules.  The Bar guidelines for past results are on The Florida Bar’s website http://www.floridabar.org.

The Guidelines for Advertising Past Results were initially approved by the Bar’s Board of Governors at its December 13, 2013 meeting and, inter alia, restrict references to past results in billboards and other such display advertisements and television and radio advertisements.  The guidelines state:

Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results. Although the revised advertising rules permit lawyers to advertises past results with disclaimers and adequately explain the context, the guidelines state that these disclaimers may not be adequate when the advertisement is on a billboard or in a TV or radio spots. 

The Bar guidelines also state that any amount claimed to have gone to a client in an advertisement in an “acceptable” advertising medium must be the net amount and, if the client received a structured settlement, the amount must be the value in current dollars. The guidelines also state that, unless the advertising law firm can show an exception, any advertisement that includes a dollar amount award must have the following disclaimer: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result”.

            The guidelines for past results also state:  “An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2).  The following are examples of ads that would be a violation:

 

Advertising that the lawyer obtained a $1 million judgment without disclosing that the fees and costs exceeded the amount of the judgment or that the court issued a $500,000 remittitur.

 

Advertising that the lawyer obtained a $1 million judgment without disclosing that the defendant offered to settle for $2 million.

 

Advertising a success at trial without disclosing that the judgment was overturned on appeal.

 

Advertising a success percentage without disclosing material limitations on the types of cases accepted. (E.g., advertising a percentage of success in traffic ticket cases without disclosing that the percentage only includes minor infractions by first-time offenders.)

 

Advertisement by a criminal defense lawyer that an acquittal on one or more charges was obtained without disclosing that the client was convicted of other crimes in the same case.


The guidelines also state that lawyers cannot claim to have “won” in a case when there are opposing claims or mixed results or if the judgment amount was
substantially less than sought or less than a settlement offer:

 

Results should not be characterized as wins unless such a characterization is not debatable. The following are examples of ads that would be a violation:

 

Advertising a case as a win when there were opposing claims and mixed results.

                        Advertising a case as a win when the judgment was for substantially less than was sought or less than a settlement offer.

According to a February 15, 2014 Florida Bar News article, at its January 23, 2014 meeting, the Bar’s Standing Committee on Advertising (SAC) disapproved 15 and 30 second television advertisements proposed by an Orlando law firm and upheld the advertising staff’s finding that they did not comply.  The law firm’s lawyer claimed that the advertisements met the rule and guideline standards since they disclosed net award amounts to the clients and; therefore, accurately reflected the actual amounts received by clients.  The advertisements also had a written disclaimer: “Most cases result in a lower recovery.  It should not be assumed that your case will have as beneficial a result.”  The lawyer also stated that the rules as interpreted by the guidelines may be unconstitutional.  The SCA voted to find noncompliance because of its uncertainty on how to apply the guidelines and pending guidance from the BOG.

During the SCA’s discussion of the Orlando firm’s advertisements, Elizabeth Tarbert, Bar Advertising Counsel, reported that Bar staff, at the BOG’s direction, had reviewed several hundred advertisements which had been approved since the new Bar advertising rules went into effect which contained past results. Ms. Tarbert said that several hundred did not comply with the guidelines and the affected law firms would be notified.  

The article also states that when the BOG approved the guidelines, it decided that law firms with advertisements which were previously approved but did not meet the new guidelines would be given a reasonable amount of time to remove or change the advertisements.  According to the article, around 350 advertisements from about 70 different law firms previously approved by the Bar may no longer be allowed under new advertising guidelines.  The Bar is sending between 90 and 100 letters to lawyers or law firms who had submitted advertisements to the Bar under new advertising rules and were told either that the ads complied with the new rules or would comply if certain changes were made.

Bottom line:  The guidelines for past results were a response to complaints about lawyer billboards and TV and radio advertisement advertisements which contained statements from clients such as “my lawyer got me $$$$ (fill in the number)”.  The SCA applied the rules and guidelines and disapproved the advertisements but asked for further guidance.  Stay tuned for the continuing saga of the interpretation of, and challenges to, the 2013 revised Bar Advertising Rules…

            …and 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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

2013 in review

The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 18,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 7 sold-out performances for that many people to see it.

Click here to see the complete report.

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Florida Bar’s Standing Committee on Advertising issues proposed advisory opinion which cautions lawyers against using “hidden text” or another firm’s name in a website page “metatag”

Florida Bar’s Standing Committee on Advertising issues proposed advisory opinion which cautions lawyers against using “hidden text” or another firm’s name in a website page “metatag”.

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Florida 4th DCA affirms $2 million dollar punitive damages award against Florida law firm in legal malpractice/breach of fiduciary duty lawsuit

Hello and welcome to this Ethics Alert blog  which will discuss the recent opinion of Florida 4th District Court of Appeal affirming a $2 million dollar punitive damages award against a Florida law firm.  The case is Young v. Becker & Poliakoff, P.A. — So.3d —, 2012 WL 1859108 (Fla. 4 DCA May 23, 2012) and the opinion is at:  http://www.4dca.org/opinions/May%202012/05-23-12/4D09-4869.rehg.op.pdf

According to the opinion, the law firm of Becker & Poliakoff was sued by Young for legal malpractice and breach of fiduciary duty which ultimately resulted in a jury verdict awarding $394,000.00 in compensatory damages and $4.5 million dollars in punitive damages.  Young appealed the trial court’s order remitting the jury’s punitive damages award from $4.5 million to $2 million, or alternatively, granting a new trial on punitive damages.  The law firm cross-appealed and argued that it was entitled to a directed verdict on legal malpractice and a new trial because of the trial court’s limitation on cross-examination of a witness.

The legal malpractice lawsuit was filed by Young based upon allegations related to the law firm’s handling of her federal employment discrimination suit against BellSouth Telecommunications (BellSouth).  The discrimination lawsuit was filed on May 1, 2001 by Thomas Romeo, an associate with the law firm, on behalf of Young and twelve other BellSouth employees.   At that time, the law firm was engaged in settlement negotiations on behalf of Young and several other plaintiffs in a separate action against BellSouth, which was styled Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004).  The Jackson case was filed against the law firm of Ruden, McClosky, Smith, Schuster & Russell, P.A. (Ruden) for alleged misconduct arising out of their settlement of a prior employment discrimination lawsuit against BellSouth, styled Adams v. BellSouth Telecommunications.

In the original Adams litigation, Ruden represented the plaintiffs (including Young) and negotiated a settlement for them.  In the later filed Jackson case, the plaintiffs alleged that Ruden, while negotiating the settlement in Adams, made an improper side deal with BellSouth and entered into undisclosed agreements that were unlawful and unethical.  Young was among the several plaintiffs in the Jackson case who hired the law firm to represent them against BellSouth and Ruden.

The law firm settled the Jackson case in the summer of 2002 for $8 million and received $2,927,540.00 for its fees and costs; however, before the case was settled, and while settlement negotiations were underway, Thomas Romeo and the law firm were hired by Young and twelve other plaintiffs to file a separate federal lawsuit on their behalf against BellSouth for alleged continuing discrimination.  Unknown to Young (but apparently known to the law firm), this new lawsuit was dismissed because of the expiration of the statute of limitations and this created a conflict of interest for the law firm while settling the Jackson case.  This alleged conflict formed the basis of Young’s claims of legal malpractice and breach of fiduciary duty.

In the malpractice lawsuit, Young alleged that the law firm intentionally delayed telling her about the dismissal of her case until after the Jackson case was settled.  The jury found that the law firm knew that the case had been dismissed, but withheld that information from Young so they could settle the Jackson case and secure the $2.9 million fee and cost reimbursement in that case.  The jury returned a verdict for Young of $394,000.00 in compensatory damages which consisted of $144,000.00 in past lost wages and $250,000.00 in damages for “pain and suffering, mental anguish, or loss of dignity.”  The jury also awarded $4.5 million in punitive damages against the law firm; however, the trial court remitted the punitive damages to $2 million, finding that the amount was not supported by evidence that the law firm had insufficient financial resources to comply with such a verdict without facing bankruptcy.  Young rejected the remittitur/new trial order and filed the appeal.

According to the opinion, Thomas Romeo, a former law firm associate who had been disbarred in 2003, testified at the malpractice trial.  Counsel for the law firm sought to introduce the disbarment and details of the disbarment prior to beginning his cross-examination.  The law firm’s lawyer argued that since Romeo was a key witness at the trial, his credibility was “squarely at issue” and the lawyer should be allowed to impeach Romeo’s credibility with evidence of his disbarment.  The trial court found that evidence of the disbarment was not admissible, relying on Tormey v. Trout, 748 So.2d 303, 306 (Fla. 4th DCA 1999) wherein the 4th DCA held that cross-examination of the defendant’s medical expert regarding administrative discipline was an improper attack on his credibility.  The law firm cross-appealed the denial of the directed verdict and this exclusionary ruling by the trial court.

The opinion found that the trial court’s exclusion of the testimony was correct and that Romeo’s testimony that he was not currently practicing law did not open the door to evidence of his disbarment since his testimony:

“was not misleading to the jury; he never represented to the jury, expressly or impliedly, that he was a lawyer in good standing, and he did not testify about legal issues as an expert witness. Romeo testified merely as a fact witness concerning his recollection of events surrounding the Young v. BellSouth case.  He referred to areas of discrimination law and procedures only to explain why he filed certain claims and took particular actions during the relevant time period. The fact that he was disbarred at a later date for unrelated reasons was irrelevant and unfairly prejudicial.  The trial court ruled appropriately and did not abuse its discretion in disallowing this evidence.”

The opinion affirmed the trial court’s order for remittitur or new trial based on the “economic castigation or bankruptcy” ground relied on by the trial court and found no error in the trial court’s denial of the law firm’s motion for directed verdict and the ruling on the proffered disbarment impeachment evidence.

Bottom line:  This case is a bit scary on multiple levels, including the large amount of punitive damages (even after the remittitur) and the potential serious Bar rule violations.  The opinion also found that evidence of the disbarment of a “fact witness” is not admissible (presumably proffered as an admissible prior bad act) if the testimony of that witness is not misleading or a misrepresentation…

…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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

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.

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

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Filed under Attorney discipline, Attorney Ethics, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Legal malpractice, Punitive damages, Uncategorized

Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial

Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial.

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