Hello everyone and welcome to this Ethics Alert which will discuss the recent Order suspending a Massachusetts lawyer for one year and one day for seeking reimbursement from firm and CLE sponsor for wine expense. The case is In Re: Jonathan Sablone, BBO # 632998 and the May 4, 2022 Order of suspension effective June 3, 2022 is here: https://bbopublic.massbbo.org/web/f/BD2022-035.pdf
According to a summary of the case prepared by the Massachusetts Board of Overseers Office of General Counsel, the lawyer was “a partner in the litigation department of a large national law firm”.
The summary further states that the lawyer organized a CLE conference in April 2019 and paid $1,952.00 for wine for the reception. After the conference, the lawyer sought reimbursement from the CLE sponsor and his law firm. Both the firm and CLE provider reimbursed him in full. After learning of the double billing of the cost, the lawyer’s law firm filed a disciplinary complaint. The lawyer immediately reimbursed the law firm for the full amount.
Bottom line: This lawyer improperly sought double reimbursement for his expenses from his law firm and a CLE provider. He was caught and received a lengthy suspension
Be careful out there.
Disclaimer: this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.
According to the disciplinary Complaint, the client was injured on April 20, 2016, while riding in a taxi that collided with another vehicle. The client died on January 1, 2017, from causes unrelated to the automobile accident. The client’s mother notified the law firm of his death on January 3, 2017. The client’s death terminated the lawyer’s authority to represent his client and the client’s family would have to pursue a claim through a representative of his estate appointed by the probate court.
The lawyer made a settlement demand for $245,000.00 on November 8, 2017, stating that the client would likely suffer from “significant arthritis” because of his injuries although he was aware of the client’s death when he made the settlement demand.
The Complaint alleges that the insurance adjuster did not know that the client had died and made a counteroffer of $50,000.00 on December 20, 2017. The lawyer agreed to settle the case for $60,000.00 on December 27, 2017. The lawyer then sent an email to a partner in his law firm stating: “Settled $60,000. Client is dead from unrelated cause. Settled without adj knowledge of death.” “Adj” apparently referred to the insurance adjuster.
On December 27, 2017, the insurer sent the lawyer a full release and settlement for the client’s execution. The insurance carrier refused to settle when it received a settlement document indicating that the party signing the agreement was the administrator of the client’s estate, rather than the client. The Complaint alleges that the revision to the document was made either the lawyer or an employee acting under his direction.
Bottom line: This lawyer apparently (and allegedly) did not know (or ignored the fact) that a client’s death terminates a lawyer’s representation, and a deceased person has no future “pain and suffering”.
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.
Hello everyone and welcome to this Ethics Alert which will discuss the Association of Professional Responsibility Lawyers (APRL) recommendation that the ABA change its model rules to allow licensed lawyers to provide legal services in any state. The 4/18/22 APRL letter to the ABA president is here: https://aprl.net/wp-content/uploads/2022/04/Letter-regarding-our-proposal-to-ABA-President.pdf
APRL is a group of more than 400 lawyers and legal academics who, inter alia, provide advice on legal ethics matters. I am a member of the group. Brian Faughnan, president of APRL, sent the letter to ABA President Reginald Turner proposing a change to Model Rule 5.5 of the ABA Model Rules of Professional Conduct, which can be adopted by the states and other jurisdictions. Model Rule 5.5 governs unauthorized practice of law and multijurisdictional practice.
According to the letter “(the) proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time.”
“At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.”
The recommended rule change would require lawyers to disclose where they are admitted to practice, and lawyers could not practice in a different jurisdiction if they have been suspended or disbarred.
Current Model Rule 5.5 states a lawyer not admitted to practice in a particular jurisdiction is prohibited from establishing an office or continuous presence in that jurisdiction, except as authorized by the ethics rules or other law. The Model Rules permits a lawyer to practice in the particular jurisdiction on a temporary basis, including associating with a local lawyer however, there are also exceptions for in-house lawyers.
A report prepared by a subcommittee of the Association of Professional Responsibility Lawyers that developed the rule states that the proposed rule change emphasizes the concept of clients’ right to choose counsel “and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries.”
As reasons for the rule change, the report cites the gap in the public’s access to justice and the fact that there are too few or no lawyers in some geographic areas. The report further states that the rule change could also benefit underemployed and unemployed lawyers who are willing to provide legal services to underserved areas.
The report states that reciprocity rules that allow lawyers to practice in additional states are not “an adequate solution.” Eleven states do not offer reciprocity, and those that do offer reciprocity impose burdens, such as a length of practice requirement, different standards for continuing legal education, and delay in approval.
The ABA Standing Committee on Ethics and Professional Responsibility will most likely review the possible rule changes and ask for input from public hearings and written comments. Any proposed rule change would have to be approved by the ABA House of Delegates.
Bottom line: There are periodic pushes for rules to permit lawyers to provide legal services in all states; however, none of the previous efforts got very far. We will see if this proposal moves forward.
Be careful out there.
Disclaimer: thisblog 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.
Hello everyone and welcome to this Ethics Alert which will discuss new ABA Formal Ethics Opinion 501 which states that lawyers are prohibited from direct solicitation of potential clients and have an ethical obligation to ensure that employees and others retained by the lawyer/law firm do not engage in such improper solicitation. ABA Formal Opinion 501 is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-501.pdf
The formal ethics opinion confirms that a solicitation under ABA Model Rule of Professional Conduct 7.3(a) is any communication initiated on or behalf of a lawyer or a law firm directed to a specific person that the lawyer knows or reasonably should know needs legal services. The rule permits the direct, face-to-face solicitation if the contacted person is a lawyer, a family member or a close friend or a person who routinely uses the types of services offered by the lawyer.
The opinion addresses a lawyer’s ethical responsibilities regarding third parties who solicit on behalf of the lawyer. Model Rule 8.4(a) provides that it is professional misconduct for a lawyer to knowingly assist or induce another to violate the rules, including impermissible solicitation and the lawyer is subject to discipline under 8.4(a) if the lawyer knows of the third party’s conduct or requests or authorizes it.
According to the opinion: “It would be manifestly unfair and illogical to hold a lawyer responsible for another’s actions that the lawyer does not even know about,” according to the opinion.
In addition, lawyers can violate Model Rule 5.3, which provides that lawyers generally are responsible for the ethical conduct of their employees, including nonlawyers. Under Model Rule 5.3, lawyers with supervisor authority “must discuss ethical rules with these employees,” including the rule against solicitation in Model Rule 7.3.
The opinion distinguishes between “what constitutes a prohibited ‘solicitation’ on behalf of the lawyer versus merely making a recommendation about the lawyer can be complicated” and provides four hypotheticals of solicitation and then explains whether they are permissible or impermissible. The first three include:
The lawyer obtained a list of people arrested and from a local sheriff and calls the people to offer legal services.
The lawyer hires a professional lead generator to obtain client leads for mass tort cases.
A paralegal at a law firm, who is also a paramedic, solicits accident victims on behalf of the law firm.
According to the opinion, the lawyer violates the ABA Model Rules of Professional Conduct by either engaging in direct solicitation in violation of Model Rule 7.3(b), knowingly assisting another in violation of the rules under Model Rule 8.4(a) or failing to educate and train nonlawyer legal assistants on ethical responsibilities under Model Rules 5.3(b) and 5.3(c).
In a fourth hypothetical, the lawyer asks a banker, who is a personal friend or colleague, to provide the lawyer’s name and contact information to anyone that might need estate planning. The opinion states that the lawyer’s conduct is not improper since “(R)ecommendations or referrals by third parties who are not employees of a lawyer and whose communications are not directed to make specific statements to particular potential clients on behalf of a lawyer do not constitute ‘solicitations.’”
Bottom line: This ABA formal opinion provides guidance to lawyers on preventing improper solicitation by nonlawyer employees and by the lawyer.
Be careful out there.
Disclaimer: this ethics alert 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.
Hello everyone and welcome to this Ethics Alert which will discuss the recent Maryland Court of Appeals opinion disbarring a lawyer for misappropriating more than $14,000.00 in law firm funds by submitting false expense reports and making misrepresentations to cover up the misconduct. The opinion is here: https://www.courts.state.md.us/data/opinions/coa/2022/51a20ag.pdf
According to the opinion, the lawyer initially improperly charged over $3,000.00 to his law firm in 2012 for his family’s trip to Bermuda. When he was questioned about the expense, the lawyer falsely stated that he traveled to Bermuda at the invitation of a client and for “client development”.
The law firm later discovered that the lawyer had sent an email to the client’s CEO asking whether he would be in Bermuda during lawyer’s trip and the CEO stated that he would not be there. The lawyer also charged two hotel rooms to his law firm. The lawyer then admitted to the misconduct and the law firm took no action against him after he repaid the money.
The lawyer again submitted false expense reports in 2015, for reimbursement for personal expenses he was “attempting to masquerade as business expenses.” In 2019, after he was confronted by the firm’s chief financial officer and two equity partners, the lawyer submitted his resignation. The lawyer repaid $35,000.00 to the law firm from an offset in his law firm capital account as restitution.
The lawyer argued that the court should consider the emotional problems that he experienced during the misconduct as mitigation, which the court described as “anger, frustration and feelings of entitlement and self-righteousness.” The opinion found that, through counseling, the lawyer had developed self-awareness about the anger that drove his misconduct; however, it refused to consider his emotional problems as mitigation.
“At bottom, (the lawyer’s) anger and frustration resulted in him taking actions for dishonest and selfish purposes. Mr. Bonner’s contention that we should consider these emotional problems as a mitigating factor here employs some circular logic. We consider ‘dishonest or selfish motive’ as an aggravating factor, which was proven here. We will not cancel out the presence of this aggravating factor in mitigation simply because the dishonest and selfish motives were fueled by feelings of anger, frustration and self-righteousness.”
The opinion also refused to consider the consequences that the lawyer had already suffered, including a tarnished reputation, loss of his ownership interest in the law firm, and a second disciplinary case for the same acts in Washington, D.C. as mitigation.
“We will not recognize the natural consequences of intentional misconduct as constituting a mitigating factor that would militate against the imposition of a more serious sanction. To do so could potentially create an illogical ‘seesaw’ effect—where more egregious misconduct that results in greater adverse natural consequences leads to a reduced sanction because we consider the adverse consequences as a mitigating factor.”
The opinion acknowledged that the lawyer had no prior discipline, was remorseful for his misconduct, accepted responsibility by repaying the firm, had cooperated in the disciplinary proceedings, had a good professional reputation, and had shown traits such as kindness, generosity, empathy and compassion.
Notwithstanding the above mitigation, the opinion stated that those factors “do not tip the scales in favor of a sanction less than disbarment. “(the lawyer) “knew that his conduct was wrong. When his misdeeds were discovered in 2012, he had an opportunity to right the ship. Instead, in 2015, he veered the ship back onto the wrong course and continued to steer it awry until he hit ground in 2019.”
The opinion concluded:
“Considering the nature of Mr. Bonner’s misconduct and the various mitigating and aggravating factors present here, we conclude that disbarment is the appropriate sanction.”
Bottom line: According to the opinion, this lawyer stole from his law firm, was caught and tried to cover it up and then paid the firm back, and then stole from the law firm again a few years later. He was reported to the Maryland Bar and, notwithstanding the mitigation found by the court, he was disbarred.
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.
Hello everyone and welcome to this Ethics Alert which will discuss the Pennsylvania Supreme Court opinion which suspended a Pennsylvania for one year and one day for failing to advise client of adverse decision and $183,620 tax lien, failing to file timely appeal, and executing false affidavit. The opinion is here: https://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/174DB2020-Dixon.pdf
The lawyer failed to respond to the allegations, and they were deemed admitted. The Pennsylvania Disciplinary Board issued a lengthy and detailed report finding that the lawyer had failed to inform a tax client about an adverse decision, failed to file a timely appeal, failed to inform the client of a $183,620.00 tax lien, and executed a false affidavit regarding his conduct.
The Disciplinary Board report also found that the lawyer failed to disclose the adverse ruling to the client and failed to meet the deadline for an appeal. The lawyer “on multiple occasions failed to reply to his client’s inquiries about the status of its case” and, when he did respond with “updates,” he made misrepresentations to the client.
The lawyer falsely said that he was “pulling together some materials” to “fast-track resolution of the appeal,” that the secretary of the body that considers the appeals had conceded the lien was in error and was “going to touch base with the appropriate folks,” that a successful resolution would be forthcoming, and that the appellate body “threw us a curveball” when it denied relief.
The lawyer also prepared two false affidavits, one that he executed and one that he prepared for his assistant, to support the false claim that he did not receive the decision when it was issued and should be allowed to appeal.
The lawyer testified at a Bar committee hearing and stated that he unable to get over the anxiety of potentially losing his job for his misconduct and that he made things worse by being dishonest. The lawyer also told the committee that he had suffered from depression and anxiety after a breakup with his wife in 2013 and that he was “in no way prepared” to handle the position at Morgan Lewis when he accepted the job in 2016.
The lawyer stated that he “oversold” his ability to be a practice group leader in the state and local tax area and he “was not prepared to come into the firm and build a team” The lawyer said that, in hindsight, he should have taken more time off to address his mental health issues before accepting the position at Morgan Lewis.
The Disciplinary Board report further stated: “At the time (the lawyer) thought that his mental health issues were a weakness he could ‘power through.’ He recognizes now that his issues were not a problem he could handle on his own.” The lawyer had expressed remorse for his conduct and “described his actions as dishonest, inappropriate and a mistake.” The lawyer has been practicing law since 2006 and has no prior discipline.
Bottom line: This lawyer made some very serious errors and then tried to cover them up by made false statements and preparing false affidavits and was caught. He indicated that he was depressed and anxious and was “not prepared” to handle the responsibilities of his position in the large law firm. Surprisingly, he received a suspension of only one year and one day.
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.
Hello everyone and welcome to this Ethics Alert which will discuss the Florida Supreme Court’s recent (February 17, 2022) opinion implementing a comment to Rule 4-5.5 which conforms to the approved Advisory Opinion issued by the Florida Bar’s Standing Committee on UPL stating that an out-of-state lawyer may practice non-Florida law remotely from Florida if the lawyer has no public presence in Florida. The opinion is here: https://www.floridasupremecourt.org/content/download/829246/opinion/sc21-1379.pdf
As I previously blogged, the Bar’s UPL opinion, which was approved by the Florida Supreme Court, states:
It is the opinion of the Standing Committee that the Petitioner who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from his private Florida residence under the circumstances described in this request does not establish a regular presence in Florida for the practice of law. Consequently, it is the opinion of the Standing Committee that it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.
The comment to rule 4-5.5 now states:
[A] lawyer licensed in another United States jurisdiction practice of law when the lawyer works remotely while physically located in Florida for an extended period of time if the lawyer works exclusively on non-Florida matters, and neither the lawyer nor any firm employing the lawyer hold out to the public as having a Florida presence.
Bottom line: The UPL advisory opinion and Rule 4-5.5 comment clarify that out of state lawyers with no place of business in Florida and no public presence or profile in Florida as an attorney can practice non-Florida law remotely from Florida.
Be careful out there.
Disclaimer: this blog 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.
Hello everyone and welcome to this Ethics Alert, which will discuss the recent Arizona Supreme Court opinion suspending a lawyer 60 days for using the “chat” function on the GoToMeeting platform to coach his client in answering questions. The case is In the Matter of State Bar of Arizona, Ryan Patrick Claridge, PDJ 2021-9088. The Arizona Supreme Court Final Judgment and Order, Agreement for Discipline by Consent, and Decision Accepting Agreement for Discipline by Consent are here: https://www.azcourts.gov/Portals/101/2021/CLARIDGE%20PDJ%202021-9088.pdf?ver=MC9grhQGbj3dKF_KKJJFHg%3d%3d
According to the Agreement for Discipline by Consent, the lawyer was charged with sending messages to a divorce client during cross-examination by her estranged husband in Maricopa County, Arizona Superior Court in September 2020. The judge was present in the courtroom and the other parties participated virtually through GoToMeeting.
The judge determined that the lawyer appeared to be coaching his client when she reviewed the “chat”. The lawyer’s chat messages to the client directed the client “to provide specific, substantive answers to specific questions that were being asked of her.” The judge instructed the lawyer to stop and the lawyer agreed; however, the lawyer apparently said to the judge: “It would be the same as if I shook my head in the courtroom.”
The lawyer admitted in the consent agreement that he violated ethics rules regarding fairness to an opposing party; conduct involving fraud, deceit or misrepresentation; and conduct prejudicial to the administration of justice in the consent agreement. According to the consent agreement, the lawyer had no prior disciplinary record and had a cooperative attitude toward the proceedings;.
The lawyer was suspended for two (2) months beginning on March 1, 2022 with a two-year probationary period after he is reinstated, and payment of $1,200.00 within 30 days of service of the Final Judgment and Order.
Bottom line: This is one of the many ways that lawyers can get into difficulty in the brave new world of electronic court proceedings. Incredibly, this lawyer decided to communicate with the client about her answers in testimony using the “chat” function during the hearing. Not surprisingly, I strongly recommend that lawyers not do this.
Be careful out there.
Disclaimer: this blog 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.
Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar Board of Governor’s (BOG) vote to approve the proposed amendment to Florida Bar Rule 3-5.2 regarding emergency suspension of lawyers charged with a felony crime in either state or federal court at its January 21, 2022 meeting.
As I previously blogged, the BOG Disciplinary Procedure Committee’s draft amendment resulted from a June 11, 2021 letter from the Florida Supreme Court wherein the justices noted that Rule 3-7.2 “pertains to felony determinations or judgments of guilt, both of which only occur at the conclusion of the criminal matter” and requested that the Bar review the rule and require a temporary suspension for lawyers who are charged with felonies in state or federal court.
The proposed amendment would add new subdivision (b) allowing an emergency suspension where a lawyer has been charged with a felony in state or federal court. The proposed amendment also requires the Bar to file a document called “Notice of Institution of Felony Charge Causing Great Public Harm” if the Bar determines, after review, that an emergency suspension is warranted “because the allegations in the charging documents, if proven, would establish clearly and convincingly that the lawyer appears to be causing great public harm.”
The amendment also permits the lawyer to file a motion to dissolve the emergency suspension after it is imposed and request that the appointed referee dissolve the suspension. The proposed rule amendment will be forwarded to the Supreme Court for final consideration.
At the January 21, 2022 meeting, the BOG also voted to reject a Disciplinary Procedure Committee proposal to amend Florida Bar Rule 3-7.2 that would have required Florida Bar members who enter any pre-trial diversion program in any criminal case, or who receive a censure or reprimand in another state, to notify The Florida Bar.
Bottom line: As I said, if implemented by the Florida Supreme Court, the proposed Bar Rule 3-5.2 amendment may or will create constitutional issues since individuals who are charged with crimes are presumed innocent until proven guilty beyond a reasonable doubt. I will provide updates when they occur.
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.
Hello everyone and welcome to this Ethics Alert, which will discuss the Arizona Supreme Court’s recent issuance of an Alternative Business Structure (ABS) license authorizing a non-lawyer owned legal services provider called Elevate to integrate with an Arizona law firm.
In 2020, Arizona became the first state to eliminate Rule 5.4 of the ABA Model Rules of Professional Conduct, which prohibits nonlawyers from having an economic interest in a law firm or participating in attorney fee-sharing. Arizona has been licensing alternative business structures since 2021 and there have been multiple approved ABS applications, including an application filed by LegalZoom to operate as LZ Legal Services in the state.
Elevate was granted an ABS license to operate in Arizona in conjunction and integration with an Arizona law firm. The entity filed an application to be licensed as an ABS called ElevateNext and stated that it would focus on assisting clients with general corporate matters.
Elevate’s January 13, 2022 press release/announcement states:
“The Arizona Supreme Court granted law company Elevate an Alternative Business Structure (ABS) license, making Elevate and its affiliated law firm, ElevateNext, a single entity. This makes Elevate the first non-lawyer-owned law company, LPO, or ALSP in the United States with an integrated law firm. The ABS-licensed firm uniquely positions Elevate to address customer needs that require some aspect of legal practice along with technology, consulting, or services for ‘run the company’ business operations.
“For decades, ethics rules of the various U.S. states prohibited ownership of law firms by non-lawyers. In 2020, Arizona became the first state to eliminate this prohibition. Elevate’s application was approved unanimously by the Arizona Supreme Court in late 2021.”
Bottom line: The Arizona Supreme Court’s decision to revise the state’s Bar rules and permit non-lawyers and non-traditional entities to become licensed and involved in legal practice and the legal process is part of a growing trend, mostly in the western U.S. states.
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.
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