Tag Archives: Attorney Ethics

California Bar files disciplinary charges against former Los Angeles City Attorney alleging prosecutorial misconduct

Hello everyone and welcome to this Ethics Alert which will discuss the recently filed disciplinary charges filed by the California Bar against former a Los Angeles City Attorney alleging prosecutorial misconduct during a death penalty case that he handled when he was a Los Angeles County deputy district attorney more than 30 years ago.  The case is State Bar of California v. Carmen Anthony Trutanich, Case No. 16-O-12803 (filed February 9, 2017) and is here:  http://members.calbar.ca.gov/courtDocs/16-O-12803.pdf

The lawyer served as the elected Los Angeles City Attorney from 2009-2013.  He was a deputy district attorney for Los Angeles County prior to that time and, while he was a deputy district attorney, he is alleged to have failed to provide exculpatory information in responding to discovery by withholding the true name and address of a witness from the defendant in the People v. Barry Glenn Williams.  He is also alleged to have failed to correct a police detective’s false testimony regarding the detective’s investigation in 1985 and a murder witness’ false testimony regarding the name a person who was driving a vehicle during a crime in 1986.

A federal judge cited prosecutorial misconduct in overturning the defendant’s murder conviction and death sentence in 2016, which resulted in a review by the California State Bar’s Office of Chief Trial Counsel.  The California Bar is notified when a criminal conviction is reversed because of alleged attorney misconduct.

The lawyer will have an opportunity to respond to the charges, which must be proven by the California Bar and approved by the California Supreme Court before any discipline can be imposed.

Bottom line: This lawyer will be defending very serious allegations that allegedly occurred over 3 decades ago.   As you may already know, criminal prosecutors are held to higher ethics standards and have special responsibilities to seek justice and disclose exculpatory information.  If these allegations are true, this prosecutor not only failed to provide exculpatory information, but also actively participated in providing false information and testimony in the case.  Stay tuned…

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Prosecutor misconduct discipline, Prosecutorial misconduct ethics

Virginia Ethics Opinion examines duties of partners and supervisory lawyers when firm lawyer is significantly impaired

Hello everyone and welcome to this Ethics Alert which will discuss the recent Virginia Ethics Opinion which examines two hypothetical situations involving impaired lawyers, one where the lawyer may be abusing alcohol and the other where the lawyer may be suffering from age related dementia.  The first scenario is important since studies have shown that lawyers disproportionately suffer from alcohol and controlled substance addiction and abuse and the second scenario is certainly becoming much more important as many (i.e. baby boomer etc.) practicing lawyers become older.  The opinion is Virginia State Bar Legal Ethics Opinion 1886, which is here:  https://www.vacle.org/opinions/1886.htm

In the first scenario, a managing partner in a law firm learns from credible sources that a senior associate had a serious substance abuse problem and had been appearing in court drunk and smelling of alcohol.  The managing partner also observed that the associate exhibited what are considered to be traditional signs of an abuse problem.  When confronted, the associate denied that he has any problem.

The opinion addresses whether the managing partner is required to report the associate’s suspected abuse problem and concludes that the partner may not be required to report the associate if he or she has promptly taken reasonable steps to ensure that the associate does not engage in any future conduct that breaches any duties owed to the firm’s clients.

“The law firm may be able to work around or accommodate some impairment situations.  For example, the firm might be able to reduce the impaired lawyer’s workload, require supervision or monitoring, or remove the lawyer from time-sensitive projects…(t)he impaired lawyer’s role might be restricted solely to giving advice to and drafting legal documents only for other lawyers in the firm who in turn can evaluate whether the impaired lawyer’s work product can be used in furtherance of a client’s interests.”

According to the opinion, “if reasonable measures or precautions have been taken by (the managing partner) and any other lawyers in the firm to ensure that the impaired lawyer complies with the Rules of Professional Conduct, neither the partners or supervisory lawyers in the firm are ethically responsible for the impaired lawyer’s professional misconduct, unless they knew of the conduct at a time when its consequences could have been avoided or mitigated and failed to take reasonable remedial action.”

In the second hypothetical, a lawyer suspected that her 60-year-old law firm partner (who is prominent in his area of practice) was suffering from age-related dementia. The lawyer had seen and heard about some erratic behavior by the partner; however, she does not want to report the partner and risk ruining his reputation, unless it is required by the Bar Rules.

The opinion states that, unless there is professional misconduct of which the lawyer is aware, she (or he) is not required to report the partner; however, she would be required to make reasonable efforts to prevent him from violating his ethical obligations to the clients or violating Bar Rules. This would include an initial conversation with the partner about his condition and attempting to persuade him to seek an evaluation and treatment, if necessary.

Bottom line: this opinion makes it clear that law firms should be aware of these issues and implement and enforce policies that require impaired lawyers to seek assistance and also require supervisory (and other) lawyers to take appropriate steps to protect the clients’ interests, such as removing an impaired lawyer from a case or supervising him or her and requiring professional assistance and address the problem. If those policies are in place (and the lawyer has not observed or become aware of Bar violations), the lawyer would not necessarily be required to report the impaired lawyer to the Bar.

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.

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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Filed under Attorney Ethics, Ethical duties impaired lawyers, Ethics opinion impaired lawyer, joe corsmeier, Joseph Corsmeier, Virginia Lawyer Ethics Opinion impaired lawyer

ABA approves Model Rule revision requiring 1 hour of both substance abuse/mental health and diversity/inclusion CLE

Hello everyone and welcome to this Ethics Alert which will discuss the recent vote by the American Bar Association’s House of Delegates to approve a revision to the ABA Model Rule for Minimum Continuing Legal Education to require one (1) hour of substance abuse and mental health CLE every three years, and one (1) hour of diversity and inclusion CLE every 3 years.

At the ABA’s recent meeting in Miami, the House of Delegates approved changes to the Model Rule for Minimum Continuing Legal Education requiring one hour of substance abuse and mental health CLE every three years, along with mandatory diversity and inclusion CLE. The decision to approve the revision was unanimous and there was no debate.

The rule revisions were sponsored by the ABA’s Standing Committee on Continuing Legal Education and its Commission on Lawyer Assistance Programs and resulted from a multiyear review of the continuing legal education model rule by special committee. The Model Rule had not been updated since 1988.

The revisions were approved about one year after a study by the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation concluded that lawyers suffer substance abuse and mental health problems at higher rates than other professions/industries. The study found that 21 percent of licensed lawyers qualify as problem drinkers; 19 percent have symptoms of anxiety; and 28 percent show signs of depression. The study also found that lawyers in their first decade of practice were more likely to face these issues.

According to media reports, administrators of lawyer assistance programs across the country endorsed the mandatory requirement and stated that it will remove the stigma lawyers might face for voluntarily attending mental health and substance abuse sessions.  There was apparently a concern that lawyers who attend such CLEs will be assumed to be struggling with the issues; however, if it is mandatory, no one will make that assumption.

The revised Model Rule also requires one hour of diversity and inclusion CLE every three years which may include information about implicit bias or how to improve diversity in the legal profession.

The revised Model Rule is advisory only and each jurisdiction has its own CLE requirements.  Currently, most jurisdictions do not require lawyers to obtain CLE credits for programs specifically related mental health and substance abuse. Three states currently require attorneys to complete specific diversity and inclusion programs.

Florida currently requires 33 credit hours of CLE every 3 years and 5 of the 33 credit hours must be in legal ethics, professionalism, bias elimination, substance abuse, or mental illness awareness programs.  3 of the 33 credit hours must be in approved technology programs.  These hours are included in, not in addition to, the regular 33 credit hour requirement. Excess CLE credits cannot be carried over to the next reporting cycle.

Bottom line: The revised ABA Model Rule requiring 1 hour of substance abuse and mental health and one (1) hour of diversity and inclusion CLE every 3 years does not apply unless a jurisdiction adopts it in its CLE rules.  Each lawyer should consult the CLE rules in his or her own jurisdiction.

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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Filed under 2017 ABA Model Rules required CLE for substance abuse and diversity and inclusion, ABA lawyer required CLE substance abuse and diversity, Attorney Ethics, Florida 2017 increase in CLE hour requirments, Florida lawyer 2017 technology CLE requirments, Florida lawyer CLE technology competence, Florida lawyer continuing legal education technology and increase in hours, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism

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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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Confidentiality and privilege, dishonesty, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false claims on resume and website, Lawyer false statements, Lawyer misrepresentation, Lawyer personal misconduct false internet postings, Lawyer Professionalism, Lawyer sanctions

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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Filed under ABA formal opinions, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising past results, Lawyer advertising promising results, Lawyer advertising rules, lawyer blogs, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics opinions blogs and advertising, Lawyers and social media