Michigan board recommends disbarment for lawyer who allegedly lied about, inter alia, being on the 1996 U.S. Olympic team

Hello everyone and welcome to this Ethics Alert which will discuss the recent Michigan Disciplinary Board opinion recommending disbarment for lawyer who allegedly lied about his qualifications and participation on a U.S. Olympic team.  The case is Michigan Grievance Administrator, v. Ali S. Zaidi, Case No. 14-117-GA (January 11, 2017).  The Disciplinary Board’s opinion is here: http://www.adbmich.org/coveo/opinions/2017-01-11-14o-117.pdf

According to the Board opinion, the lawyer made misrepresentations that “run the gamut from outlandish and extravagant to what might be termed modifications of his record inspired by some actual events”.  The lawyer misrepresented and inflated the time of his employment and invented fictional summer associate positions at law firms where he worked at other times.  He was employed for short periods by law firms in Connecticut and Missouri and he falsely claimed that he was admitted to practice in those states.

The lawyer also falsely claimed that he was on the 1996 U.S. Olympic field hockey team and that he had a master of liberal arts from Harvard University.  He also maintained a website that represented that his law firm, called Great Lakes Legal Group, was associated with multiple lawyers at several locations around the country.  The lawyer admitted that this representation was false and that law firm was just an “idea that is still in progress.”

A disciplinary hearing was scheduled before a Board panel.  The lawyer requested that the hearing be continued because of a birthday party for his children and later because he could not obtain child care. The request was denied and the hearing was held without his presence.  The panel found the lawyer guilty, found numerous aggravating factors, and recommended disbarment.

The lawyer filed a petition for review claiming that he missed the hearing because his daughter was recovering from surgery on her eye; however, the disciplinary board found that the lawyer had been provided proper notice and upheld the decision not to continue the hearing.

The lawyer appeared at the sanctions hearing before the panel and admitted that he made misrepresentations regarding his qualifications since he was “scared nobody would hire me if they realized why I was moving around so much…and I wanted to create this impression of longevity and create this impression of consistency of my movements.”

According to the Board opinion, the lawyer “did not present any coherent reason or evidence for his conduct that could be viewed as mitigating, in part, he claimed, because he did not want to inconvenience his character witnesses. Furthermore, he failed to present any argument on what sanction would be appropriate.”

The Board opinion found that, “(c)ollectively, (the lawyer’s) actions are indicative of a cumulative pattern of a lack of honesty and candor, which is contrary to the fundamental characteristics of an attorney. Although respondent does not have any prior discipline, there is no question he has an established track record of deceit. Given the number and pattern of violations, respondent’s dishonesty, and his overall lack of candor and cooperation, the panel properly found that disbarment is appropriate in this case.”

Bottom line:  This a somewhat bizarre case, to put it mildly.  The lawyer appears to have a problem with the truth and apparently tried to justify his actions with self-serving excuses.  The Michigan Supreme Court will now review the case and determine the sanction.

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

 

 

 

 

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California Ethics Opinion addresses ethics issues related to lawyer blogging and advertising and provides guidelines

Hello everyone and welcome to this Ethics Alert which will discuss the recent California Formal Ethics Opinion which addresses ethics issues related to lawyer blogging and advertising and provides guidelines for lawyers who blog.  The Opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2016-196 and the ethics opinion is here: Cal. Formal Opinion No. 2016-196

The opinion reviews the application of advertising rules to attorney blogging and when blogging by an attorney considered a “communication” under the California Bar Rules and the provisions of California Business and Professions Code which regulate attorney advertising.  The California rules prohibit false or deceptive “communications” which confuse, deceive or mislead the public (as do most, if not all Bar rules throughout the U.S.)  This proscription applies to both affirmative statements and/or to omissions necessary to make a statement not misleading.

The opinion discusses U.S. Constitution First Amendment principles, including the fact that lawyer advertising is protected commercial speech, and truthful lawyer advertising cannot be absolutely prohibited; however, it can be subject to reasonable regulation and restrictions.  In addition, communications for publication by lawyers that are primarily informational and educational have long been considered to be core political speech and protected under the First Amendment, and such speech can be restricted only under extraordinary circumstances.

The First Amendment protections apply even if the lawyer also hopes, as a partial motive, to use the informational and educational communications to increase his or her legal business; however, commercial motivation is only one factor to be considered.  The key questions are whether a blog is a message or offer (1) made by or on behalf of a California attorney; (2) concerns the attorney’s availability for professional employment; and; (3) is directed to a former, present or prospective client.  Since all blogs will meet factors 1 and 3, the important question is whether the blog concerns the attorney’s availability for professional employment under question 2.

The opinion discusses Cal. Formal Opinion 2012-186, which analyzes the application of California advertising rules to attorney social media posts, and found that a post which has words of offer or invitation relating to representation is a “communication’; however, if a post is only informational in nature, it is not a communication. The opinion concluded that this same analysis applies to lawyer blogs.

The opinion also discusses Cal. Formal Opinion 2001-155, which found that, even without specific words of invitation or offer, a website that included information such as a detailed listing of services, qualifications, backgrounds, and other attributes of the attorney or law firm, with their distribution to the public, could carry a “clear implication” of availability for employment, and would therefore be a “communication” subject to advertising  regulation. The opinion concluded that the same analysis applies to lawyer blogs.

The opinion states that a listing of all of an attorney’s cases and outcomes, without comment, could be considered informational and not a “communication”; however, a communication with the result of a specific case or cases without providing information related to the facts and/or law giving rise to the result, would be presumed to be false, misleading or deceptive, and could be a prohibited “guarantee, warranty or prediction regarding the result of representation.” The opinion stated that even a numbered listing of “wins” might be misleading without clarification about what is considered a “win.”  The use of disclaimers may (but will not necessarily) overcome a presumption of violation.

Bottom line:  Lawyer blogging has become a very popular and somewhat ubiquitous form of legal communication and is often recommended to lawyers as a business strategy.  This recent California Bar ethics opinion provides solid guidance to lawyers who are blogging or plan to blog to attempt to insure compliance with the Bar rules, regardless of whether the lawyer is in California or another state.  If a lawyer blogs, each blog should primarily informational and educational to potentially avoid the application of Bar advertising rules (like this one).

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.

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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Florida Bar Board of Governors agrees with BOG Ethics and Bar Advertising Committees that “Results So Good, You’ll Think It’s Magic!” violates Bar Rules

Hello everyone and welcome to my first Ethics Alert of 2017 which will discuss the recent decision of the Florida Bar’s Board of Governors (BOG) to uphold the opinion of the Bar’s Standing Committee on Advertising (SCA) and the recommendation of the BOG Ethics Committee (BRCPE) that a law firm’s “Results So Good, You’ll Think It’s Magic!” slogan violates the Bar Rules.

According to an article in the January 1, 2017 issue of The Florida Bar News, the SCA had opined that the law firm’s proposed name: “Ticket Wizards”, and a slogan: “Results So Good, You’ll Think It’s Magic!” violated two Florida Bar advertising rules: 1) promising results to potential clients; and 2) characterizing the “skills, experience, reputation, or record” of the firm in a way that the firm could not objectively verify.

After the SCA found against the law firm, it appealed to the BOG.  The BOG considered the matter at its recent meeting in Clearwater and, by a 24-20 vote agreed with the BRCPE and denied the appeal; however, it found the name and the picture of a wizard did not characterize the firm’s experience, skills, reputation, or record.  The BRCPE had recommended that the firm should only be permitted to use the name and image if it could objectively show it is a “master or expert” in that area of practice.  The BOG voted that the law firm could use the name and image if it could objectively verify the implications of the title and picture.

With regard to the slogan “Results So Good, You’ll Think It’s Magic!,” the BOG agreed that the slogan can “reasonably be construed as a prediction of success” and, therefore, it violated the Bar rules. The BOG also found that the slogan violated the rule against characterizing a firm’s “skills, reputation, character, or record “unless it is objectively verifiable.

Bottom line: It appears that the lesson here is that lawyers are prohibited from promising magical results (unless perhaps they are magicians?)…

Happy New Year to you and yours and 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

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ABA Ethics Opinion provides guidance regarding client confidentiality when lawyer withdraws from representation for failure to pay fees

Hello everyone and welcome to this Ethics Alert which will discuss the recent ABA Formal Ethics Opinion which provides guidance regarding client confidentiality when a lawyer withdraws from representation.  The opinion is ABA Formal Opinion 476 (12/19/16) and is online here: ABA Opinion 476.

Model Bar Rule 1.16 related to withdrawal from representation

The ABA opinion discusses Model Rule 1.16, which is substantially similar to the Florida Bar Rule 4-1.16 and other state Bar rules.   According to the opinion, “Model Rule 1.16 addresses a lawyer’s duties and responsibilities when withdrawing from the representation of a client. Rule 1.16(a) sets forth the circumstances when a lawyer is required to withdraw, and Rule 1.16(b) describes the circumstances when a lawyer may be permitted to withdraw from a representation.  Among the permissive reasons, Rule 1.16(b)(5) provides that a lawyer may withdraw from representing a client when “the client substantially fails to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”

“Comment [8] to (Model Rule 1.16) states:  ‘A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs . . . .’ In addition, Rule 1.16(b)(6) provides that a lawyer may withdraw where ‘the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.’  As the courts have decided in the cases cited below, if a client fails over time to pay a lawyer’s fees, and that failure continues after a lawyer provides a reasonable warning to the client, the lawyer may be permitted to withdraw.  In effectuating a withdrawal, a lawyer should do so in a manner that minimizes any prejudice to the client.”

Model Bar Rule 1.16 related to the lawyer’s duty to maintain confidentiality 

“Neither Rule 1.6(b) nor the Comments expressly refer to motions to withdraw for unpaid fees. The Comments do, however, recognize that some disclosure of confidential client information otherwise protected by Rule 1.6(a) is permitted in fee-collection suits by lawyers, based on the “claim or defense” exception in Rule 1.6(b)(5).  Similarly, motions to withdraw based on a client’s failure to pay fees are generally grounded in the same basic right of a lawyer to be paid pursuant to the terms of a fee agreement with a client. Nonetheless, courts have differed widely as to whether any specific information regarding a lawyer’s reasons for seeking withdrawal is required in a motion to withdraw, and if so, how much.”

Limiting any required disclosures of confidential information to mitigate harm/prejudice to clients 

The opinion also discusses the requirements to limit disclosures to mitigate harm/prejudice to the client.  “Comment [16] to Rule 1.6 provides that disclosures under Rule 1.6(b) are permitted only to the extent the lawyer reasonably believes necessary to accomplish the purpose specified.  Of course, where practicable, a lawyer should first seek to persuade the client to take suitable action to remove the need for the lawyer’s disclosure. When such persuasion is not practicable or successful, and disclosure of some confidential information is required, ‘If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.’   Thus, Comment [16] anticipates the use of in camera submissions for disclosures where any of Rule 1.6(b)’s exceptions may apply. The situation is similar to discovery disputes over claims of privilege, whereby competing claims are often resolved by a court’s review in camera of the documents at issue and such procedures can help reconcile the competing issues involved in ruling on motions to withdraw as well.

The opinion’s final summary paragraph states:  “In moving to withdraw as counsel in a civil proceeding based on a client’s failure to pay fees, a lawyer must consider the duty of confidentiality under Rule 1.6 and seek to reconcile that duty with the court’s need for sufficient information upon which to rule on the motion. Similarly, in entertaining such a motion, a judge should consider the right of the movant’s client to confidentiality. This requires cooperation between lawyers and judges. If required by the court to support the motion with facts relating to the representation, a lawyer may, pursuant to Rule 1.6(b)(5), disclose only such confidential information as is reasonably necessary for the court to make an informed decision on the motion.”

Bottom line:  All lawyers must be aware of the ethics rules, issues, and requirements surrounding client confidentiality when a lawyer is withdrawing from representation due to the client’s failure to pay the fee and this opinion provides a good overview.  The fact that the client has failed to pay is confidential in itself and the lawyer should not include any client confidential information in the motion to withdraw and should only provide the information to the court if necessary or if ordered to do so by the judge.  If the court orders the lawyer to provide confidential information, the lawyer should consider an in camera appearance before the judge with the client and excluding the opposing counsel to preserve confidentiality, if plausible.

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

 

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ABA Ethics Opinion provides ethics requirements when lawyer receives an earned fee in which another lawyer has an interest

Hello everyone and welcome to this Ethics Alert which will discuss the recent ABA Formal Ethics Opinion which addresses the ethical requirements when a lawyer receives an earned fee that is subject to a fee sharing arrangement and both lawyers have an interest in the fee.  The opinion is ABA Formal Opinion 475 (December 7, 2016) and is online here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_475.authcheckdam.pdf.  The opinion discusses the ABA Model Rules which apply when lawyers agree to properly share a fee and one lawyer receives the earned fee.

According to the ABA opinion, “Model Rule 1.5(e) provides for the division of fees between lawyers who are not in the same firm.  A division of a fee “is a single billing to a client covering the fee of two or more lawyers who are not in the same firm.”  Rule 1.5(e) provides that such agreements are permissible only if the division is proportionate to the services performed by each lawyer or both lawyers assume joint responsibility for the representation, the client agrees to the arrangement including the share each lawyer ‘will receive, the arrangement is confirmed in writing, and the total fee is reasonable. Model Rule 1.15(a) provides in pertinent part that a lawyer shall hold property of…third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.’”

The opinion states that “(t)he receiving lawyer…must, under Rule 1.15(a), deposit the funds in which co-counsel holds an interest in an account (typically a trust account) separate from the lawyer’s own property. Rule 1.15(d) requires the lawyer who receives the earned fees subject to a division agreement to promptly notify the other lawyer who holds an interest in the fee of receipt of the funds, promptly deliver to the other lawyer the agreed upon portion of the fee, and, if requested by the other lawyer, provide a full accounting.”

“Finally, if there is any dispute as to the interest of the receiving lawyer and the lawyer with whom the receiving lawyer is dividing a fee, Rule 1.15(e) requires that the receiving lawyer keep the disputed funds separate from the lawyer’s own property until the dispute is resolved.”

Bottom line:  “A lawyer may divide a fee with another lawyer who is not in the same firm if the arrangement meets the requirements of Model Rule 1.5(e). When one lawyer receives an earned fee that is subject to such an arrangement and both lawyers have an interest in that earned fee, Model Rules 1.15(a) and 1.15(d) require that the receiving lawyer hold the funds in an account separate from the lawyer’s own property, appropriately safeguard the funds, promptly notify the other lawyer who holds an interest in the fee of receipt of the funds, promptly deliver to the other lawyer the agreed upon portion of the fee, and, if requested by the other lawyer, provide a full accounting”.  (Most states, including Florida, the same or substantially similar rules).

Lawyers must be aware that, according to this recent ABA opinion (which is not binding), when there is a fee sharing arrangement (referral or co-counsel fee), and the lawyer receives funds to which another lawyer has an interest, the receiving lawyer must hold the funds in a separate account, safeguard the funds, promptly notify the other lawyer, and provide an accounting if requested by the other lawyer.

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

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Arizona lawyer disbarred upon consent for disparaging book about his client Jodi Arias which violated client confidentiality

Hello everyone and welcome to this Ethics Alert which will discuss the recent disbarment of an Arizona lawyer who represented notorious murder defendant Jodi Arias and published a book with disparaging details about the representation and revealing attorney/client confidential information without the consent of the client.  The case is In the Matter of Laurence K. Nurmi, Case No. PDJ-2016-9115.

The lawyer began representing Jodi Arias as an assistant public defender.  She was charged in the lurid and violent murder of her boyfriend in Arizona in 2008 and was found guilty of first degree murder in May 2013; however, the jury was unable to reach a unanimous decision on whether to sentence her to death.

Another sentencing hearing was held in the fall of 2014 and that jury voted 11-1 to sentence Arias to death.  The death penalty vote must be unanimous in Arizona and Arias was subsequently sentenced to life in prison in April 2015.  She has appealed the verdict and sentence.

Sometime in 2015, the lawyer began writing a book detailing his representation of Arias without written/oral permission or authority from Arias to publish or disseminate any information related to the representation.  According to the allegations, the book presents a negative view of Arias and the case.  The lawyer’s self-published book, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial (Volume 1), was released in 2015.

The book includes multiple confidential discussions between the lawyer, Arias, and her family. The book also provides details of the case, makes disparaging remarks, and makes several statements regarding the substance of witness interviews and inadmissible exhibits.  The lawyer also continued to disclose and explain certain facts and circumstances in the book related to his representation of Arias in promotional radio interviews.

In October 2016, the State Bar of Arizona filed a formal complaint against the lawyer for revealing attorney-client confidential information about Arias and her case in the book.  The lawyer attempted to settle the case with a 4 year suspension; however, Jodi Arias objected to that sanction.

Immediately after the announcement of the consent agreement, the Maricopa County public defender, James Haas, objected to the Arizona Bar because the agreement did not specifically order the lawyer to stop violating ethical rules with regard to the Arias case, including revealing confidential information, since the book was listed as one of 3 volumes.

The lawyer filed a request for disbarment on November 14, 2016.  The presiding disciplinary judge accepted the lawyer’s request on November 21, 2016 and issued an order making the disbarment effective the same day.

Bottom line:  This lawyer chose to write a book in a highly publicized and lurid case which disparaged his client and revealed attorney/client confidential information, including conversations with her and her family and disparaging comments.  Aria’s conviction is currently on appeal and it has been alleged that information in the book may jeopardize that appeal.

All lawyers should be aware that, unless the client provides informed consent, a lawyer is strictly prohibited from revealing attorney/client confidential information, even after the representation has been concluded.

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

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