Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar Board of Governor’s (BOG) review of a 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.
The BOG is expected to consider the proposed amendment to Florida Bar Rule 3-5.2 at its January 21, 2022 meeting. 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.
At its January 21, 2022 meeting, the Board will also consider a Disciplinary Procedure Committee proposal to amend Florida Bar Rule 3-7.2 that would require 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.
If approved, the proposed amendments will be forwarded to the Supreme Court for final consideration. Copies of the proposed amendment and back up BOG agenda documents are available upon request to The Florida Bar’s public records department.
Bottom line: This proposed Bar Rule 3-5.2 amendment, if approved by the BOG and implemented by the Florida Supreme Court, may create constitutional issues since individuals who are charged with crimes are presumed innocent until proven guilty by clear and convincing evidence. I will continue to follow this and will provide updates when available.
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 recent Oregon U.S. District Court Judge’s Order requiring the law firm of Davis Wright Tremaine and one of its partners to pay over $40,000.00 in sanctions for failing to mention “long-standing, settled caselaw” that prevented the judge from issuing an injunction that was sought by the law firm. The December 16, 2021 Court Order is here: https://s3.documentcloud.org/documents/21164070/mcshanesanctionslawyerfirmliable.pdf
The Davis Wright law firm had represented St. Charles Health System Inc. in an attempt to prevent a strike by 156 medical technicians and therapists. Davis Wright partner Mark Hutcheson sought an injunction to prevent the strike, even though a district court has no jurisdiction to issue an injunction in those circumstances and only the National Labor Relations Board has authority to seek an injunction to prevent an unfair labor practice under the National Labor Relations Act.
Judge Michael McShane of the U.S. District Court for the District of Oregon sanctioned the law firm and firm partner Mark Hutcheson and required the payment of $40,625.00 for the opposing party’s legal fees. The judge found that the failure to disclose was “an attempt to deceive the court via a material omission.”
The judge further found that the motion was filed in bad faith for an improper purpose to gain a negotiating chip in the hospital’s discussions with the union representing the workers. “Had the defense not cobbled together a quick brief, the court was prepared to issue a completely illegal order based on the law as presented by the hospital; law the court later learned to be a fiction.”
The Order states that the lawyer and law firm “essentially argue that although in hindsight they could have done more to alert the court of binding, contrary precedent, their actions are not sanctionable because they were merely arguing for an ‘extension’ of existing caselaw and were unable to identify any case ‘on all fours’ with the underlying facts here.” “This explanation is meritless.”
Bottom line: This is an example of a court’s application of the Bar Rule which requires lawyers to identify and disclose legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. The lawyer’s failure to disclose the legal authority in this matter resulted in civil sanctions and could also result in an investigation and potential disciplinary sanctions.
Florida Bar Rule 4-3.3(a)(3) sets forth this requirement and is below:
RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL
(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
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.
Hello everyone and welcome to this Ethics Alert, which will discuss the recent proposal by the Oregon State Bar to permit nonlawyers to represent clients in housing and family law cases. A link to information and a video explaining the proposal on the Oregon State Bar website is here: https://www.osbar.org/lp The Oregon State Bar Board of Governors is moving forward on a “paraprofessional licensing program,” which would allow paralegals to handle certain landlord-tenant and family law cases. According to the Oregon State Bar, the proposal is designed to assist with the backlog of landlord-tenant cases in courts and to broaden access to legal representation.
A 2019 survey conducted by Portland State University, along with several legal organizations including the Oregon Law Center, the Oregon State Bar and Legal Aid Services of Oregon, showed that Oregon residents living at or below the poverty line are disproportionately affected by legal problems such as credit card and debt issues and landlord-tenant disputes, which are also more likely to affect people of color and single parents.
The Oregon State Bar’s website states:
“The Oregon Supreme Court is considering licensing paralegals to provide some legal services that currently only lawyers may provide. Similar to the introduction of Nurse Practitioners to the medical field, licensed paralegals would be allowed to provide limited legal services only in family law cases (divorces, custody, parenting time, etc.), and landlord/tenant cases. These are two of the areas of law with the greatest unmet need for legal assistance in Oregon.
“The licensed paralegals would have specific requirements for education and experience, and would be subject to many of the rules and regulatory requirements that currently exist for lawyers. The intent is to provide access to legal help for those who currently cannot afford a lawyer or who otherwise go to court with no legal assistance. The Court will be making a decision on this proposal next year. The Oregon State Bar is interested in your input to better inform the Court’s decision.”
The Oregon State Supreme Court will make the final decision on the program, most likely next year, and the Oregon State Bar is acceptng public comment on the proposal until February 18, 2022.
Bottom line: As I previously blogged, a number of western states permit or are considering permitting, nonlawyers to practice law..
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
Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion approving new Rule 3-7.18 related to disposition of judicial referrals with a minor revision. The case style is In Re: Amendment to Rule Regulating The Florida Bar 3-7.18, Case No. SC21-653 and the 10/21/21 opinion is here: https://www.floridasupremecourt.org/content/download/797197/opinion/sc21-653.pdf
New Florida Bar Rule 3-7.18 creates special procedures for review by the Florida Bar’s Board of Governors and the Florida Supreme Court related to Bar complaints or matters initiated by judges and suspends deadlines for the disposition of such judicial referrals. The opinion removed the provision that required the Florida Supreme Court to make a decision on the referral within 30 days or the Bar’s recommended disposition would become final.
New Rule 3-7.18 is below:
RULE 3-7.18 DISPOSITION OF INQUIRIES OR COMPLAINTS REFERRED TO THE BAR BY MEMBERS OF THE JUDICIARY
(a) Definitions. Wherever used in this rule, the following words or terms have the following meaning:
(1) Disposition. A disposition of an inquiry or complaint is the termination of an inquiry or complaint before a finding of probable cause or the filing of a formal complaint where a probable cause finding is not required. A disposition includes a:
(A) decision not to pursue an inquiry;
(B) dismissal of a disciplinary case;
(C) finding of no probable cause;
(D) finding of no probable cause with issuance of a letter of advice;
(E) recommendation of diversion; and
(F) recommendation of admonishment for minor misconduct.
(2) Judicial Referral. A judicial referral is an inquiry, communication, or complaint questioning the conduct of a member of the bar submitted to the bar by a member of the judiciary. A judicial referral also includes a court order, judgment, or opinion specifically referring to the bar a matter questioning the conduct of a member of the bar.
(b) Suspension of Deadlines for Final Disposition of Judicial Referrals. All deadlines for final disposition elsewhere in these rules are suspended under this rule. No disposition of a judicial referral will become final until the review required by this rule is complete.
(c) Review by Board of Governors. The disciplinary review committee will review all dispositions of judicial referrals first and will recommend a disposition to the board. The board may accept or reject the recommended disposition. If the board rejects the recommended disposition, the board may:
(1) refer the matter to a grievance committee for additional investigation or review;
(2) find probable cause, and the case will proceed accordingly; or
(3) recommend a different disposition to the Supreme Court of Florida.
The executive committee may act on behalf of the board or disciplinary review committee in connection with its review of dispositions of judicial referrals as specified with other disciplinary matters under these rules.
(d) Supreme Court of Florida Review. The Supreme Court of Florida may review the board’s recommendation for approval of dispositions of judicial referrals.
(1) Submission of Summary Report and Documents. The bar will submit the board’s recommendations for approval of judicial referrals to the clerk of the Supreme Court of Florida as soon as practicable after the board’s decision but not later than 30 days The submission will include a summary report of the inquiry or complaint; the nature of the alleged rule violations; the board’s recommended disposition; the judicial referral; any response by the respondent; applicable orders, decisions, opinions, or communications by the judge or court; and all other nonconfidential documents considered by the board.
(2) Supreme Court of Florida Actions. The Supreme Court of Florida may take the following actions:
(A) approve the board’s recommended disposition;
(B) reject the board’s recommendation, which will be deemed a finding of probable cause and direction to the bar to file a formal complaint;
(C) refer the matter back to the board for further review, with or without a recommendation or guidance; or
(D) request that the bar provide additional information.
Bottom line: As I previously blogged, The Florida Bar was previously following a version of the procedures in this rule by policy and the delay caused by the additional layers of procedures will now be required by rule, including review by the Board of Governors and review by the Supreme Court of Florida. The new rule also provides for the suspension of all deadlines for final disposition of Bar complaint matter under the Florida Bar Rules. The rule becomes effective on December 20, 2021 at 12:01 am.
Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court opinion suspending a lawyer for 91 days for sending texts to his client and coaching the client during a deposition and making misrepresentations about it to the opposing counsel and judge. The case is The Florida Bar v. Derek Vashon James, No. SC-128 (11/18/21) and the opinion is here: https://www.floridasupremecourt.org/content/download/806044/opinion/sc20-128.pdf
According to the opinion, the lawyer represented an employer in a workers’ compensation case. On July 31, 2018, the lawyer participated on behalf of the employer at the telephonic deposition of the adjuster along with the employee’s lawyer. All of the participants appeared from different locations.
The lawyer texted instructions to the adjuster that included coaching and directions on how to respond to the employee’s lawyer’s questions. The employee’s lawyer heard typing over the telephone and asked the lawyer if he was coaching the adjuster. The lawyer denied that he was texting the adjuster and stated that he was texting his daughter.
After a break in the deposition, the lawyer continued to text instructions to the adjuster; however, he inadvertently sent the texts to the employee’s lawyer even though he has asserted that he would stop. When the employee’s lawyer saw the texts, she stopped the deposition and later asked the judge of compensation claims to order the lawyer to produce all texts that he sent during the deposition.
The lawyer produced two pages of texts between himself and the adjuster; however, there were no texts to or from his daughter or wife. The lawyer blamed this on his lack of understanding of technology inabilities and also claimed the texts were sent during the break in the deposition and were protected by attorney/client privilege.
During the Florida Bar disciplinary hearing, the lawyer told the referee that workers’ compensation proceedings were informal and that he felt obligated to help the adjuster. The referee found the texts were sent during the deposition and that the texts were dishonest. The referee also found the lawyer “failed to be transparent and forthright with the judge” by claiming that he texted only his wife and daughter during the deposition and that the texts to the adjuster came only during the break.
After the Bar proceedings were concluded, the referee recommended that the lawyer be found guilty of violating Bar Rules 3-4.2 (misconduct and minor misconduct) and 4-3.4(a) (obstructing a party’s access to evidence or otherwise altering, destroying, or concealing a document). The referee further recommended that the lawyer be found not guilty of violating Rule 4-8.4(d) (engaging in conduct that is prejudicial to the administration of justice) and be suspended for 30 days.
The court’s opinion noted the underlying facts were not in dispute and affirmed the referee’s factual findings. The opinion also found that the lawyer violated Rule 4-8.4(d). “This Court has determined that dishonesty in connection with the practice of law is prejudicial to the administration of justice.” “The lawyer’s) dishonesty is clear from the record, and we find him guilty of violating Bar Rule 4-8.4(d).”
The court’s opinion concluded:
“James obstructed opposing counsel’s access to evidence when he secretly coached Gray while she was being questioned, telling her how to answer Villaverde’s questions and directing her to avoid providing certain information. This conduct continued even after he assured Villaverde that he would stop texting during the deposition. Thereafter, he repeatedly misrepresented to Villaverde that he did not send text messages to Gray during the deposition. Particularly egregious was his failure to be forthright with the Judge of Compensation Claims about sending the text messages to Gray and about when he sent them. We find that James’s behavior warrants a ninety-one-day suspension.”
In a separate dissenting opinion, Justice Alan Lawson, joined by Justice Jamie Grosshans, agreed with the court’s finding of guilt but would have imposed a shorter suspension than the 91 days, which requires a petition for reinstatement. The dissent states:
“(T)he referee found that James’s cooperation, full and free disclosure, lack of a prior record, and character testimony from two witnesses were mitigating factors sufficient to justify a nonrehabilitative sanction. The referee’s recommendation was largely based on credibility determinations and an assessment of James’s demeanor that the referee was in the best position to make, and the referee’s recommendation is consistent with our precedent.
Accordingly, I respectfully dissent from that portion of the opinion that imposes a ninety-one-day rehabilitative suspension.”
Bottom line: This is another example of the Florida Supreme Court increasing the discipline recommended by the referee, who receives the evidence and makes factual and credibility determinations and decisions.
Be careful out there.
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.
Pursuant to the very detailed Report and Recommendations of the California Paraprofessional Program Working Group, licensed paraprofessionals would be allowed to represent parties in court in certain situations; however, with a complete prohibition on representation in jury trials. In addition, if approved, paraprofessionals would be permitted to provide services in family law, housing, consumer debt, employment/income maintenance, and collateral criminal matters. Paraprofessionals would also be permitted to have minority ownership interests in law firms.
The report further recommends that an extensive discipline/regulation system be implemented and that recommends that there be no limits on the fees that licensed paraprofessionals will be authorized to charge, except as provided in Rule 1.5.1(c) of the Paraprofessional Rules of Professional Conduct.
The working group cites to the California Bar’s 2019 Justice Gap Study which found that “while 55 percent of Californians experience at least one civil legal problem in their household each year, they received inadequate or no legal help for 85 percent of these problems. A lack of knowledge about what constitutes a legal issue, deciding to deal with the problem without help, and concerns about the cost of legal services were identified as primary factors that prevent many people from seeking legal assistance.”
There were extensive dissenting opinions and alternative recommendations in the report. Public comments on the California proposal are due by January 12, 2022 and the California Bar is then expected to consider a final proposal later in the year. Any plan approved by the California Bar would be sent to the California Supreme Court and the California state legislature for review and potential approval.
As I have previously blogged, the states of Washington, Utah and Arizona have previously created such programs for paraprofessionals, and several other states, including Florida, are considering doing so. New York is also considering implementation of a working group’s recommendation that it license social workers to perform some legal tasks. As I also previously blogged, the Washington Supreme Court voted to sunset its Limited License Legal Technicians program, citing to costs and an apparent lack of interest.
Bottom line: California becomes another state considering allowing nonlawyers (paraprofessionals) to provide legal services and own law firms. It now seems to be a trend. Stay tuned 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 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.
Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court opinion disbarring a lawyer who “dodged discovery requests” and was “untruthful and intentionally misleading” during alimony dispute and was jailed for contempt. The case is: The Florida Bar v. Koepke, Case No. SC20-286 and the Supreme Court’s October 28, 2021 opinion is here: https://www.floridasupremecourt.org/content/download/798875/opinion/sc20-286.pdf
The lawyer was divorced in 1990. When he became behind in alimony payments, the lawyer for his ex-wife heard that one of his personal injury cases may have settled and requested documents related to that settlement. The ex-wife’s lawyer filed a motion to compel when the lawyer refused to provide the client file and settlement documents.
The lawyer eventually provided a copy of the fee agreement but did not produce any documents related to the settlement, which would pay him a $400,000.00 contingency fee. The lawyer further stated “there being no settlement”, no documents available to respond to the request.
The judge ordered the lawyer to provide the client file. The lawyer ultimately complied and the file included the settlement documents. As a result, the his ex-wife’s lawyer filed an order to show cause why the lawyer should not be held in contempt.
The lawyer wired his $400,000.00 fee to an irrevocable trust that he set up for the benefit of himself and his grandchildren, and then offered to settle the litigation with his ex-wife for a payment of $100,000.00 if the contempt motion and other motions were dismissed and if his ex-wife gave up all past, present and future claims to alimony and attorney fees. The ex-wife refused this settlement.
The lawyer was found guilty of indirect criminal contempt and sentenced to 30 days in jail. He appealed the contempt order and lost, ultimately serving 20 days in jail. The trial judge estimated that the lawyer’s actions cost “100 or more hours of attorney time and hours upon hours of court time to resolve.”
The trial judge referred the matter to The Florida Bar. A referee was assigned and heard the matter, found substantial mitigation, and recommended a one-year suspension. The Bar filed a petition for review. In its opinion, the Florida Supreme Court rejected the recommendation of a one-year suspension and disbarred the lawyer, stating that he was “untruthful and intentionally misleading” during alimony dispute, “abused the legal process in a way that resulted in a serious interference with his alimony proceedings”, “dodged discovery requests”, and “refused to answer questions truthfully”. The lawyer also “hastily” settled a trust to put the contingency fee funds out of reach. “This was deceitful abuse of the process by someone who knew better”.
The opinion concludes:
“In reaching the conclusion that Mr. Koepke must be disbarred, we are mindful that divorce proceedings can bring out the worst in people. Yet even at one’s worst, we expect a lawyer’s oath to mean something. Indeed, we expect the oath to mean something then especially.”
Bottom line: The Florida Supreme Court found this lawyer’s misconduct in his personal family law matter to be a violation of the Florida Bar Rules and his oath of admission and that the misconduct was so egregious that it warranted disbarment.
Be careful out there.
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.
Hello everyone and welcome to this Ethics Alert with an update on the recent Florida Supreme Court opinion on The Florida Bar’s Petition alleging that the TIKD business model constitutes UPL. The case is: The Florida Bar v. TIKD Services LLC and Christopher Riley, Case No. SC18-149. The January 19, 2019 report of referee recommending dismissal of the matter is here: https://www.responsivelaw.org/uploads/1/0/8/6/108638213/report_of_referee.pdf and the Florida Supreme Court’s October 14, 2021 opinion is here: https://www.floridasupremecourt.org/content/download/795189/opinion/sc18-149.pdf As I previously blogged, the TIKD internet app permits a ticketed person to upload a photo of the ticket and pay a fixed amount. TIKD then retains an attorney to represent that person and, if he or she is ultimately is assessed with points against his or her license, TIKD refunds the payment and also pays the cost of the ticket. The TIKD business model is 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 an individual.
The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be (or were) in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment. TIKD stated 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.”
On January 23, 2018, The Florida Bar filed a Petition Against the Unlicensed Practice of Law against TIKD and its founder, Christopher Riley. The Petition alleged, inter alia, that TIKD and Riley “advertise in a fashion which may lead a reasonable lay person to believe Respondents are qualified to offer legal services to the public”, “either personally or through advertisement offer traffic ticket defense legal services for a fixed price along with an offer to pay all fines and court costs with a money-back guarantee” and, “either personally or through advertisement offer traffic ticket defense legal services while suggesting that their services are the equivalent of or a substitute for the services of an attorney.”
The Bar’s Petition requested the Court to find that the alleged conduct constitutes the Unlicensed Practice of Law and issue a permanent injunction “preventing and restraining Respondents from engaging in the acts complained of and from otherwise engaging in the practice of law in the State of Florida, until such time as Respondent Riley is duly licensed to practice law in this state.” TIKD filed an Answer and motions and a referee was assigned.
After the parties filed motions and a status hearing was held, the referee issued her report on January 24, 2019. The report of referee states:
After a careful review of the portions of TIKD’s website submitted by The Florida Bar and TIKD’s Terms of Service, including the FAQ’s and the prominent disclaimers in the Terms of Service, I find that the materials do not constitute legal advice, and do not represent that Respondents are attorneys or competent to handle legal matters. TIKD provides a service and its customers pay for the convenience the service offers. No reasonable person could conclude, based on the evidence submitted to the Referee, that TIKD or Riley hold themselves out as providers of legal services.
Based on the above Findings of Fact and Conclusions of Law, the Referee recommends that the Supreme Court of Florida dismiss all claims alleged against Respondents with prejudice, enter judgment in favor of Respondents.
On October 14, 2021, after briefs and oral argument, the Florida Supreme Court issued its lengthy opinion. In a 4 to 3 decision, the Court reversed the referee’s findings that TIKD’s online platform matching subscribing lawyers with clients contesting their traffic tickets is only administrative services and is not the practice of law.
The Florida Supreme Court’s majority opinion stated:
The inherent conflict that arises when a nonlawyer either derives income from or exercises a degree of control over the provision of legal services presents a substantial risk that the public will be exposed to and harmed by “incompetent, unethical, or irresponsible representation.
The majority opinion concluded:
Accordingly, the referee’s recommendation is disapproved. Respondents, TIKD Services, LLC, a foreign limited liability company, and Christopher Riley, individually and as founder of TIKD Services, LLC, are hereby permanently and perpetually enjoined from engaging in the acts complained of, as well as any other acts constituting the unauthorized practice of law in the State of Florida.
In the dissenting opinion, Justice Couriel (joined by Justices Polston and Muniz) stated:
The practice of law is not, or at least it is not just, the manner and means of competition among lawyers for clients’ work. Nor is it synonymous with any particular method for determining who gets access to legal services and at what price. We do not protect the profession or the public when we equate the practice of law to these things. I fear we have done that in this case, and in so doing, reached beyond our constitutional grasp.
The dissent quoted from the Florida Supreme Court’s holding in the 1962 Sperry case:
The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently misunderstood. It is not done to aid or protect the members of the legal profession either in creating or maintaining a monopoly or closed shop. It is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the code of conduct which, in the public interest, lawyers are bound to observe.
Bottom line: As a result of this opinion, the TIKD app will be immediately shut down and (barring a reversal by the Florida Supreme Court or a federal court), it and future business models using this business model template will be prohibited.
Be careful out there.
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.
Hello and welcome to this update of my April 16, 2016 Ethics Alert which will discuss the recent New Jersey Supreme opinion dismissing a complaint alleging that a lawyer improperly accessed an opposing party’s Facebook page in 2008. The style of the matter is In the Matter of John J. Robertelli, Case No. 084373, and the September 21, 2021 syllabus and opinion are here: https://www.njcourts.gov/attorneys/assets/opinions/supreme/d_126_19.pdf?c=jCl According to the summary of the opinion, “(the lawyer) represented a public entity and public employee in a personal-injury action brought by Dennis Hernandez. During the course of internet research, (the lawyer’s) paralegal forwarded a flattering message to Hernandez, and Hernandez unwittingly granted her “friend” status, giving her access to his personal private information.”
The opinion states:
“The issue in this attorney disciplinary case is the application of that seemingly clear ethical rule to a time, more than a decade ago, when the workings of a newly established social media platform — Facebook.com — were not widely known. In 2008, Facebook — then in its infancy — had recently expanded its online constituency from university and high school students to the general public. A Facebook user could post information on a profile page open to the general public or, by adjusting the privacy settings, post information in a private domain accessible only to the universe of the user’s “friends. The opinion noted the unique nature of this attorney disciplinary matter and stated that it involves a “novel ethical issue” and “no reported case law in our State addresses the sort of conduct alleged.”
The opinion further states:
“After conducting a de novo review of the record and affording deference to the credibility findings of the Special Master, we conclude that the OAE has failed to establish by clear and convincing evidence that Robertelli violated the RPCs. The disciplinary charges must therefore be dismissed.”
“We add the following. Attorneys should know that they may not communicate with a represented party about the subject of the representation — through social media or in any other manner — either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a common form of communication among members of the public. Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance. We refer this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of amendments to our RPCs.”
Bottom line: Since this incident happened in 2008, the New Jersey Supreme Court did not discipline this lawyer; however, lawyers must be aware that all jurisdictions, including Florida, have disciplinary rules which prohibit a lawyer from communicating with a represented person without the consent of that person’s lawyer, and would prohibit a lawyer (or the lawyer’s agent) from accessing an opposing party’s private Facebook (or other social media) content by sending a ‘friend’ request.”
Be careful out there.
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
According to the online summary of Illinois ARDC, an associate at an Illinois Law firm consented to a suspension of one year and completion of a professionalism seminar. The June 2021 disciplinary complaint alleged that the lawyer billed more than 2,000 annual hours on a closed pro bono case, earning a $12,000.00 bonus as a result.
The disciplinary complaint further states that the lawyer was terminated from employment with the law firm in February 2021 after admitting that he was improperly recording time on the closed case. The client matter involved a federal inmate who had alleged that he lost his prison job as an orderly in the law library after he complained about a new library policy. After the lawyer was terminated from the firm, he interviewed with at least four law firms and falsely claimed that he was laid off from his previous law firm since there was not enough work.
According to the summary of the Illinois ARDC, an associate at a different Illinois law firm consented to a suspension of 60 days after she submitted false billing records totaling 86.4 hours on a document review project, which resulted in an overcharge of more than $40,000.00 to a law firm client. The law firm refunded the client’s overpayment.
The disciplinary complaint in that matter states that the time that the lawyer entered into the billing system for the document review project was greater than the time recorded in the program that was used by the law firm to analyze and code digital documents and the time should have been substantially the same.
Bottom line: These are two unfortunate examples of lawyers who improperly inflated their billings which resulted in their suspensions from practice.
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.
Lawyer Ethics Alert Blogs 