Tag Archives: Bar ethics rules

New Jersey lawyer censured for stating to nonpaying client that he would not prepare for trial and to “HAVE FUN IN PRISON”

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order imposing a a censure on a lawyer who told a client who was behind on payment of fees that he would not prepare for his criminal trial and to “have fun in prison”.  The case style is: In the Matter of Logan M. Terry, No. DRB 17-417 (November 1, 2018).  the Order and New Jersey Disciplinary Review Board’s Decision are here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1105750  and here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1098836.

According to the Disciplinary Review Board’s decision, the attorney represented a client facing criminal charges of sexual assault on four minors and:

In the days immediately prior to a jury trial scheduled for June 7, 2016, respondent communicated with his client in an attempt to collect outstanding fees, informing AM that respondent could not “provide an adequate defense” unless AM ……… paid respondent’s legal fees. Furthermore, in a text message, respondent warned AM that he would not prepare for the trial during the weekend immediately preceding it, unless he was first paid. He then wrote, “HAVE FUN IN PRISON.” The maximum sentence that AM could have received exceeded 200 years.

The lawyer had previously asked the judge to allow him to withdraw twice and the judge refused to allow the withdrawal.  At the beginning of the June 7, 2016 trial (after the jury had been picked), the client told the trial judge about the lawyer’s communications, showed the judge copies of the communications, and stated that he wanted to terminate the lawyer’s legal services.  The lawyer was then removed and the trial was continued.

The New Jersey disciplinary agency opened an investigation on the lawyer and, in a letter to the agency, the lawyer admitted that his actions had been unethical and stated that the client had not cooperated in preparing a defense to the charges and had refused a plea offer that the lawyer considered to be favorable.

The Disciplinary Review Board found that the lawyer’s actions constituted a conflict of interest because he “placed his own personal interest in receiving a legal fee above his client’s interest in receiving the best possible defense to the charges against him.”  The Board also found that the lawyer’s text was prejudicial to the administration of justice because the judge was required to release the jury and reschedule the trial.

The decision found as an aggravating factor that the trial had been previously rescheduled because the lawyer had failed to pay the annual fee to the New Jersey Lawyers’ Fund for Client Protection.  According to the decision:  “(t)o be sure, (the lawyer) was in a difficult position, having been required to continue representing an uncooperative, nonpaying client in a criminal matter. Nevertheless, (the lawyer’s) reaction to that predicament was one of defiance—to subvert the court’s directive by ‘poisoning’ the representation on the eve of trial.”

The New Jersey Supreme Court upheld the Board’s findings and imposed a censure and required the lawyer to pay the costs of the disciplinary proceeding.

Bottom line:  This lawyer clearly became frustrated with the client’s lack of cooperation and failure to pay his fee; however, the lawyer’s communications were obviously improper and he was fortunate to receive only a censure for his conduct.

Be careful out there, and don’t do this…

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.

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, joe corsmeier, Joseph Corsmeier, Lawyer abusive e-mails, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer derogatory remarks, Lawyer discipline, Lawyer e-mail abuse of client, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Two Ohio lawyers receive stayed six-month suspensions for violating client confidences while engaged in a personal relationship

Hello everyone and welcome to this Ethics Alert which will discuss the recent Ohio Supreme Court Order imposing a six month stayed suspension on two lawyers who violated client confidences while engaged in a personal romantic relationship.  The case style is: The Disciplinary Counsel v. Holmes and Kerr, Slip Opinion No. 2018-Ohio-4308 and the opinion is here:  https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-4308.pdf

According to the stipulated facts, the lawyers began a romantic relationship after meeting at a conference in November 2014. They represented different public school districts and were employed by different law firms.  Between January 2015 and November 2016, the lawyers exchanged more than a dozen e-mails in which they disclosed confidential client information.

According to the opinion, one of the lawyers (Kerr) generally forwarded e-mails from her clients asking for documents to the other lawyer (Holmes), who then provided the legal documents that he had prepared for clients with similar requests.  According to the opinion, “In about one-third of these email exchanges, Holmes had ultimately completed Kerr’s work for her.”

The opinion further states that Holmes was terminated from his law firm in June 2016 after the disclosure of confidential client information was discovered.  A partner in Holmes’ law firm then filed a Bar complaint against Holmes and notified Kerr’s firm about the confidential e-mail exchanges.  Notwithstanding the termination and notification, the lawyers continued to trade information. Kerr resigned from her law firm in November 2016.

Both lawyers stipulated to a violation of two Bar rules: improper disclosure of confidential information, and conduct which adversely reflects on the lawyer’s fitness to practice law.  The opinion states: “We agree that Holmes and Kerr engaged in the stipulated misconduct and that based on our precedent, a stayed six-month suspension is appropriate. We therefore adopt the parties’ consent-to-discipline agreements.”

Bottom line: This is a rare example of lawyers who were involved in a personal relationship being disciplined for violating attorney/client confidentiality.  The Ohio disciplinary agency was advised of the lawyers’ conduct by a partner in one of the lawyer’s firm, and both lawyers stipulated that they had violated Bar rules related to confidentiality and conduct adversely reflecting the lawyer’s fitness to practice.  Unless there is an exception or the client consents, confidential information cannot be provided to another person or otherwise disseminated.

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.

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, Attorney/client confidentiality, attorney/client privilege, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer discipline for revealing client confidences in romantic relationship, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer in romantic relationship revealing client confidential information, Lawyer sanctions

Florida lawyer suspended for hijacking former firm’s e-mail accounts and making disparaging comments on Facebook

Hello everyone and welcome to this Ethics Alert which will discuss recent Florida Supreme Court Order suspending a lawyer for, inter alia, hijacking his former firm’s e-mail accounts and making disparaging comments on Facebook.  The Supreme Court Order is here:  9/20/18 Florida Supreme Court Order-Paul Green

According to the report of referee, which is here:  8/20/18 Green Report of Referee, the lawyer was alleged to have retaliated against his former law firm after he was terminated by hijacking the firm’s e-mail account, posting false and disparaging comments on Facebook about the lawyer who fired him, and communicating inappropriately with a client.

The referee’s report states that the lawyer was fired from his law firm after he used the firm credit card for personal matters, took unauthorized draws from the firm, missed work and took vacations without discussing them with the owner of the firm, made political comments on the firm’s Facebook page, and wrote a derogatory text message about his wife’s lawyer during his divorce. The lawyer’s text said: “Tell Dana Price I hope she dies of dirty Jew AIDS.”

After being terminated, the lawyer changed the password to his former firm’s e-mail accounts and, when the firm turned off the lawyer’s telephones, he agreed to restore the e-mail access only if the firm turned his telephones back on.  After this occurred, however, the lawyer again blocked the firm’s access to e-mail and directed the e-mails to himself.

The lawyer also posted to the law firm’s Facebook page falsely claiming that the firm owner had been “Baker Acted”, a reference to the Florida law related involuntary commitments when a person has a mental condition which poses a danger to that person or to others. The lawyer’s Facebook post also said the letters sent by the former law firm to firm clients that the firm’s e-mails were hacked were untrue.

According to the referee’s report:

“On or about September 5, 2017, Respondent posted the following on Parker & Green, P.A.’s Facebook page:

If you’re wondering what’s going on…Patricia Parker was Baker Acted last Saturday. She has sent letters to all of you clients saying everything was hacked. It wasn’t but please be careful if you decide to go with the law office of Patricia L. Parker. Nothing was hacked but she is trying to get off her suicidal thoughts and is convincing clients she is ok. Don’t worry, my email still works and I am working with the Florida Bar to make sure she gets the help she needs. If you are a client, do not pay a bill until the Florida Bar decides what they will be doing with Ms. Parker. Any correspondence by Alix Diaz who has hacked email accounts owned by Mr. Green, should also be taken with a degree of skepticism. She’s been off her meds for a few months and things have finally taken their toll. I think her impending divorce to her husband for infidelity is part of the problem. If you’re trying to reach Mr. Green, he can still be reached at pgreen@itspersonaljax.com as he owns the domain and website.”

“A short time later in a second post on the firm’s page, Respondent stated:

Everyone should make sure their loved ones don’t need any mental help. Please check. If your brother, sister, father, mother, or business partner threaten to commit suicide … please get them help, before they hurt someone, themselves, or a trusted client. Luckily, Mr. Green doesn’t have that problem. pgreen@itspersonaljax.com.”

The lawyer told the false Baker Act story to a firm client he saw at Everbank Field in Jacksonville. He also said that the other lawyer in the firm had violated ethics rules and that he would finish the client’s case for free if she would make a statement about the other lawyer. He also told the client he would like to get together for drinks to discuss the case.  The lawyer sent numerous texts to the client; however, she did not respond and she subsequently filed a Florida Bar complaint against the lawyer. After the client filed her Bar complaint, the lawyer approached her while she was working as a bartender, slammed his hand down on the bar and said, “Good luck with that complaint.”

The referee recommended a 60 day suspension, a requirement that the lawyer contact Florida Lawyers Assistance, Inc. (FLA, Inc.) within 30 days for an evaluation and comply with all requirements of the evaluation, including an FLA, Inc. contract if one is recommended, and payment of the Bar and FLA costs.  The Florida Supreme Court Order adopted the findings of the referee and suspended the lawyer for 60 days with the recommended conditions.

Bottom line: This is a lawyer who engaged in improper conduct while with a law firm and then apparently went out of control after being terminated, including posting disparaging comments on social media.  The Court has suspended the lawyer for 60 days and required that he undergo an evaluation through FLA, Inc. and, if recommended, to comply with any and all treatment requirements in an FLA contract.

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.

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 issues Formal Ethics Opinion 483 providing ethics guidance to lawyers before and after a cyber breach or hack

Hello everyone and welcome to this Ethics Alert which will discuss recent (October 17, 2018) American Bar Association Formal Opinion 483 which provides guidance to lawyers before and when there has been a cyber breach or hack.  The opinion is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_op_483.pdf

Just like to rest of our digital world, lawyers are susceptible to cyber hacking/breaches when using digital devices and programs or otherwise using the internet.  The ABA Opinion confirms the duty that lawyers have to attempt to prevent such hacks and breaches and also the lawyer’s obligation to notify clients of a data hack/breach.

The opinion provides the reasonable steps that lawyers can take to meet their obligations under the ABA model rules and emphasizes the importance for lawyers to plan for an electronic breach or cyberattack and discusses how model rules may apply when an incident is either detected or suspected. According to the opinion, the following Model Rules of Professional Conduct would potentially apply:

Rule 1.1 (competence), requiring lawyers to develop sufficient competence in technology to meet their obligations under the rules after a breach; Rule 1.15 (safekeeping property), requiring lawyers to protect trust accounts, documents and property the lawyer is holding for clients or third parties; Rule 1.4 (communication), requiring lawyers to take reasonable steps to communicate with clients after an incident; Rule 1.6 (confidentiality), regarding issues of confidentiality in the client-lawyer relationship; Rule 5.1 (lawyer oversight), which sets forth the responsibilities of a managing partner or supervisory lawyer and; Rule 5.3 (nonlawyer oversight), which sets forth the responsibilities of supervisors who are nonlawyers.

The opinion states that “(w)hen a breach of protected client information is either suspected or detected, Rule 1.1 requires that the lawyer act reasonably and promptly to stop the breach and mitigate damage resulting from the breach…(h)ow a lawyer does so in any particular circumstance is beyond the scope of this opinion.”

“As a matter of preparation and best practices, however, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach. The decision whether to adopt a plan, the content of any plan and actions taken to train and prepare for implementation of the plan should be made before a lawyer is swept up in an actual breach.”

Bottom line:  This ABA opinion addresses and discusses a lawyer’s obligations in attempting to prevent a cyber hack or breach and also provides guidance regarding the lawyer’s obligations if a breach/hack occurs.  All lawyers should be addressing serious issue this now and should consult their state/jurisdiction’s ethics rules to insure compliance.

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.

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 ABA Formal Ethics Opinion 483 guidance to lawyers before and after a cyber breach or hack, ABA formal opinions, ABA Model Rules, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer competence technology, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer technology competence, Lawyer technology competence after hack or breach

Florida Bar Board of Governors approves revised rule on qualifying provider fees and ethics opinion on “expert” and “specialist”

Hello everyone and welcome to this Ethics Alert which will discuss recent (October 12, 2018) vote of The Florida Bar’s Board of Governors to approve substantive revisions to Bar Rule 4-7.14 related to the use of “expert” and “specialist” and to approve proposed ethics advisory opinion 17-2, which addresses payment arrangements between lawyers and lawyer referral services (now called qualified providers).    The ethics opinion has been renumbered to 18-1 and the Bar’s notice of the approval of the opinion and requesting comments with a link to the opinion is here:  https://www.floridabar.org/ethics/etprop-advisory/

With regard to the proposed revised Bar Rule 4-7.14, the Board considered a new proposed amendment that is designed to remove the portions of the rule which were found unconstitutional by the federal court judge in 2015.  The proposed revised rule adds new subdivisions to comply to the federal court’s order and also to address the concerns of the Florida Supreme Court, which rejected the Bar’s previous proposed revised rule.

Revised Bar Rule 4-7.14 would allow non-certified attorneys to call themselves “expert” or “specialist” if they can objectively verify that claim based upon the lawyer’s education, training, experience, and “substantial involvement” in the area of practice. The amended rule would also allow law firms to call themselves “experts” or “specialists” if that claim can be objectively verified for at least one lawyer in the firm.  The law firm making the claim would be required to have a disclaimer stating that not all firm members meet the same standards, if there are lawyers who do not qualify.

With regard to Ethics Advisory Opinion 18-1,the Board considered an opinion drafted by the Board Review Committee on Professional Ethics provides that whether a particular payment method between lawyers and qualifying providers f/k/a lawyer referral services is permissible must be determined on a case-by-case basis.  The opinion sets out criteria for determining whether a payment plan is proper and ethical and the ethics opinion is discussed and summarized in the Bar News article here: https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2F06fb4fe9ad6425748525830f004fc60b

The Board considered and approved the ethics opinion at its meeting on October 12, 2018 and will consider any comments at its December 14, 2018 meeting in Naples, Florida.

Bottom line:  The Florida Bar’s Board of Governors has taken further steps to address the issues related to the use of “expert” and “specialist” (and the federal court’s ruling that its application was unconstitutional and issuing an injunction) and also the payment arrangements between lawyers and lawyer referral services/qualifying providers.

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.

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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Connecticut lawyer who was sued for malpractice and included client’s psychiatric records in court document suspended for 2 years

Hello everyone and welcome to this Ethics Alert which will discuss the recent 2 year suspension of a Connecticut lawyer who was sued for legal malpractice and released his former client’s psychiatric records in retaliation and to embarrass the client.  The case is Office of the Chief Disciplinary Counsel v. Jason E. Pearl, Superior Court, Judicial District of New Britain, Order 418034, Docket No.: HHBCV186043301S.

The lawyer’s former client, Veronica Perakos, sued him for professional malpractice in December 2014.  According to the complaint, the client hired the lawyer in 2011 to defend her in a lawsuit her condominium association filed regarding alleged failure to pay common fees and monthly special assessment fees.  Her debt to the association was $22,358.00 and the lawyer was alleged to have failed to notify her about the risk of foreclosure if she did not make the monthly payments on the debt.

The lawsuit also claimed the lawyer did not explain to the client what happened after a court hearing, failed to give the client file to the client’s new lawyer in a timely manner, and told the new lawyer that the client’s foreclosure matter would be resolved if she placed the property on the market for a price set by the court.  The lawyer had previously been suspended for 120 days in 2013 for not complying with a random IOLTA audit and the lawsuit claimed that he also failed to notify the client of that audit.

According to court documents, approximately six weeks after the lawsuit was filed, the lawyer filed an electronically filed motion with the court asking that the client be declared “unfit to testify due to her psychiatric history, medical commitment, conservatorship and untruthfulness.” The client’s psychiatric records were also enclosed with the motion without the client’s permission.  According to media reports, the lawyer had represented the client on previous matters, which was how he obtained her medical records dating back to 2006.

The malpractice litigation resulted in a judgment for the client and, after reviewing the information and evidence regarding the publication of the client’s confidential psychiatric records, Superior Court Judge Joan Alexander found as follows:

The Court finds clear and convincing evidence that Jason E. Pearl violated Rule 8.4(4) of the Rules of Professional Conduct. He engaged in conduct that is prejudicial to the administration of justice by his unauthorized public release of a former client’s psychiatric records. The Court finds that the respondent violated Rule 1.9 of the Professional Rules of Conduct in that his conduct was retaliatory and intended to embarrass his former client. As a result of these findings, the Court orders a 2 year suspension on his right to practice law effective immediately. The court orders that the respondent must successfully complete 20 hours of legal ethics training and file notice evidencing the completion of this training. The training must be attended in person and not online. The respondent also must comply with the requirements of Practice Book § 2-47B during his suspension. If the respondent seeks reinstatement to the bar after the period of suspension, he must comply with the procedures outlined in Practice Book § 2-53.

Bottom line:  This case involves a lawyer who was apparently upset that his client had filed a malpractice claim against him and he decided to make an “unauthorized public release of a former client’s psychiatric records”, which “ was retaliatory and intended to embarrass his former client.”

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.

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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Nevada lawyer suspended for 6 months and 1 day for displaying a gun at a deposition and other “appalling behavior”

Hello everyone and welcome to this Ethics Alert which will discuss the recent 6 month and 1 day suspension of a Nevada lawyer for brandishing a gun at a deposition, using derogatory language and repeatedly making inappropriate statements, and other “appalling behavior”.  The case is In re: Discipline of James Pengilly, SC Case No. 74316.  The September 7, 2018 unpublished Nevada Supreme Court Order is here:  file:///C:/Users/jcorsmeier/Downloads/18-35030%20(1).pdf

The lawyer was representing himself as the defendant in a defamation lawsuit and the misconduct is related to the lawyer’s behavior during a deposition of the Plaintiff at his office in September 2016.  The lawyer used vulgarities while questioning the witness, called the deponent derogatory names (including “Dip Shit” and “Big Bird”), aggressively interrupted the witness and opposing counsel, answered questions for the witness, and repeatedly made inappropriate statements on the record.

At one point during the deposition, the lawyer put his hand near his hip and asked the witness if he was “ready for it”. The witness then briefly left the room and when he returned, the lawyer displayed a firearm he had in a holster on his hip to the witness and the opposing counsel.  The deposition was then terminated and the defamation litigation was put on hold.  The Plaintiff filed a Motion for Protective Order and Motion for Sanctions outlining the misconduct.  The Motion for Protective Order and Sanctions and exhibits are here: 9-29-16 Motion for Protective Order and Sanctions.  The lawyer was sanctioned for his misconduct in the litigation.

The unpublished Nevada Supreme Court Order states: “(h)aving reviewed the record on appeal, we conclude that there is substantial evidence to support the panel’s findings that Pengilly violated RPC 8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice). Indeed, the deposition transcript, coupled with the testimony at the formal hearing, demonstrates that Pengilly displayed appalling behavior toward the deponent. Additionally, the record is clear, and Pengilly admits, that he displayed a firearm. Accordingly, we agree with the hearing panel that Pengilly committed the violation set forth above.”

“Pengilly argues that his conduct should be viewed under a negligence standard, but we agree with the panel that he acted knowingly as he was consciously aware of his conduct and knew his behavior was inappropriate. His conduct caused actual injury to the proceeding as the deposition concluded early and the discovery commissioner had to issue a protective order, causing the case to be delayed. Both the deponent and his attorney testified they were afraid Pengilly was going to shoot them, and their fears were documented: they immediately called the police, filed police reports the next day, filed for a TPO, and filed bar grievances. Further, there was the potential for serious injury to every one present—the deponent, his attorney, the court reporter, Pengilly’s office staff, and even Pengilly himself–because a deadly weapon was involved.”

Bottom line:  This case involves a lawyer who was clearly lacking in emotional control and anger management, to say the least.  In addition, he was representing himself, and we know how that can go.

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.

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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