Tag Archives: Florida Bar discipline

U.S. DOJ files Statement in TIKD in federal lawsuit arguing that Florida Bar is not immune from Sherman antitrust allegations

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent (March 12, 2018) Statement of Interest filed by the United States Department of Justice arguing that The Florida Bar is not immune or exempt from antitrust under the Sherman Antitrust Act based upon the U.S. Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court, Southern District of Florida-Miami Division).  The Statement of Interest is available on the PACER federal document system here:  https://www.pacer.gov/login.html (subscription required).

As I previously blogged, TIKD Services, LLC filed the federal lawsuit against The Florida Bar, the Ticket Clinic law firm, and other individuals in the U.S. District Court, Southern District of Florida on November 8, 2017.  The TIKD app allows an individual who has received a traffic citation to upload a photo of the citation and pay a fixed fee and TIKD retains an attorney to represent that individual.  If the individual receives points against his or her license, TIKD refunds the payment and pays the cost of the ticket.  The 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 the individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of Florida Bar disciplinary rules, including fee splitting and interference with the lawyer’s independent professional judgment.  A complaint was filed with The Florida Bar by members of the law firm alleging that TIKD was engaging in the unauthorized practice of law (UPL).  That complaint is currently pending and the Bar has recommended further proceedings.

TIKD then filed the federal lawsuit court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The defendants include The Florida Bar, attorney Mark S. Good, who founded The Ticket Clinic law firm, and other individuals.  According to the federal Complaint, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story and a few months later, attorneys with The Ticket Clinic threatened to report two of TIKD’s lawyers to The Florida Bar if they continued to work with TIKD.

A state lawsuit was filed and was settled; however, TIKD alleges in the federal Complaint that The Florida Bar and the Ticket Clinic law firm continued to make a “concerted effort” to put it out of business, and that the firm’s lawyers continued filing “baseless ethics complaints” against attorneys who represent TIKD customers.

A recent (February 21, 2018) Motion for Sanctions filed by the Ticket Clinic law firm alleged, inter alia, that The Florida Bar has immunity, which immunized the individual defendants, that the individuals have immunity on other grounds, that the lawsuit is frivolous on other grounds, and that the lawsuit should be dismissed and the Plaintiffs should be sanctioned.

On March 12, 2018, the U.S. Department of Justice filed a statement of interest stating that The Florida Bar is not immune from federal or state antitrust liability under the Sherman Act as an arm of the state based upon the U.S. Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  According to the statement:

“The Florida Bar defendants assert, as one ground for their motion to dismiss, that they are entitled to protection against Sherman Act claims by the state-action doctrine of Parker v. Brown, 317 U.S. 341 (1943), without having to satisfy either the “clear articulation” or “active supervision” requirements of that doctrine. That position is incorrect. The Supreme Court’s most recent state-action decision, N. Carolina State Bd. of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), clarified the state-action doctrine with respect to state agencies that regulate learned professions. It requires that the Bar, if “controlled by active market participants,” id. at 1114, must satisfy the clear articulation and active supervision requirements in order to obtain state-action protection.”

Bottom line:  As I have previously blogged, this is one of the first cases filed in Florida (and possible in any jurisdiction) which directly alleges that a State Bar’s procedures violate the Sherman Antitrust Act in reliance upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The Statement of Interest filed by the U.S. Department of Justice agrees with that analysis and argues that it is correct.  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

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Florida lawyer is disbarred for “egregious misconduct” and a pattern of disruptive and “obnoxious” behavior

Hello everyone and welcome to this Ethics Alert which will discuss the recent disbarment of a lawyer in south Florida attorney for, inter alia, engaging in “escalating misconduct,” including loudly kicking a table and muttering “lie, lie, lie” during court proceedings.  The case is The Florida Bar v. Robert Joseph Ratiner, No. SC13-539 (Florida Supreme Court 2/22/18), and the opinion is here:  http://www.floridasupremecourt.org/decisions/2018/sc13-539.pdf

The lawyer was admitted in 1990 and was disciplined in 2007 after engaging in a rant against opposing counsel for DuPont during a deposition.  He represented some orchid growers who had alleged that DuPont’s fungicide called Benlate had killed their plants.  DuPont’s lawyer attempted to put an exhibit sticker on the lawyer’s laptop.  He then attempted to run around the table toward the other lawyer and yelled at him which, according to the referee’s report, caused the court reporter to state “I can’t work like this!”  That conduct resulted in a 60 day suspension and probation.

The lawyer was then involved in a document review session with DuPont in 2009 and, according to the referee’s report, he loudly called DuPont’s lawyer a “dominatrix,” with “no substantial purpose other than to embarrass” her. He later tried to forcibly take papers from another DuPont lawyer after she told him, “Don’t grab (me) ever again.” That conduct resulted in a three year suspension.

The most recent complaint against the lawyer was related to his conduct in Miami-Dade Circuit Court proceedings that began in late 2011.  The presiding judge stated that she heard the lawyer state “lie, lie, lie” while a DuPont lawyer was conducting a direct examination of his law partner; however, he denied making the comment.  The judge also terminated a hearing because the lawyer was kicking his table so loudly that it was disrupted the proceedings.

The assigned referee conducted hearings and The Florida Bar argued that the lawyer should be disbarred. The referee recommended a three year suspension to begin at the end of the lawyer’s current three year suspension.  In its opinion, the Florida Supreme Court found that the lawyer’s cumulative and egregious misconduct required disbarment.  According to the opinion:

“Disbarment is an extreme form of discipline and is reserved for the most egregious misconduct. See Fla. Bar v. Summers, 728 So. 2d 739, 742 (Fla. 1999); see also Fla. Bar v. Kassier, 711 So. 2d 515, 517 (Fla. 1998) (holding that disbarment is an extreme sanction that should be imposed only in those rare cases where rehabilitation is highly improbable).  Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession. As we observed in (The Florida Bar v.) Norkin,

One can be professional and aggressive without being obnoxious.

Attorneys should focus on the substance of their cases, treating judges

and opposing counsel with civility, rather than trying to prevail by

being insolent toward judges and purposefully offensive toward

opposing counsel. This Court has been discussing professionalism

and civility for years. We do not tolerate unprofessional and

discourteous behavior. We do not take any pleasure in sanctioning

[Respondent], but if we are to have an honored and respected

profession, we are required to hold ourselves to a higher standard.

132 So. 3d at 92-93.

Thus, based upon the foregoing discussion, the Court is left with but one course of action, and that is to disbar Ratiner.”

Bottom line:  This lawyer clearly failed to get the message.  The Supreme Court also did not accept his claims of innocence.  As a result, 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.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Florida lawyer who improperly advised clients regarding marijuana business resulting in their arrest and charged $799 for false marijuana card is disbarred

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion disbarring a Florida lawyer who, inter alia, incompetently advised a client regarding a marijuana growing business and charged individuals $799.00 for a falsified “patient identification card” he claimed could keep them from getting arrested for having or growing marijuana.    The case is The Florida Bar v. Ian James Christiansen (Case No. SC16-1081) (January 18, 2018).  The Supreme Court opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc16-1081.pdf

According to the opinion, The Florida Bar filed a complaint against the Jacksonville lawyer in 2016, which was assigned to a referee who held hearings.  The referee found that “in 2013, less than three months after being admitted to The Florida Bar, Respondent founded IJC Law Group, P.A., and began offering legal services and advice to clients.  At the time, Respondent had no training in the area of medical marijuana. Six months later, Respondent formed Health Law Services (HLS), and five months after that, incorporated Cannabinoid Therapy Institute (CTI). Respondent listed IJC Law Group, P.A., as CTI’s registered agent and nonlawyer Christopher Ralph—a self-professed expert in the medical marijuana industry— represented himself as CTI’s director. Ralph was also the ‘Legal Administrator and Consultant’ for HLS.”

The referee also found that the lawyer charged clients $799 for a doctor’s visit through CTI.  If the doctor found a medical necessity for the client to use marijuana, the lawyer, through HLS, provided the client with an “Official Legal Certification” and patient identification card stating that he or she had received a marijuana prescription.

The referee also found that the “doctor” to whom the lawyer referred three of the clients was not licensed to practice medicine in Florida (and the clients were not told of this”.  Two of the lawyer’s clients were provided with an “Official Legal Certification” and a “grow sign” to be posted at their residence which stated that medical marijuana cultivation was underway. The third client was provided an “Official Legal Certification” that identified one of the clients with the “grow sign” as his “authorized agent” to produce cannabis medically necessary to treat his debilitating condition.

According to the opinion, “(t)his ‘Official Legal Certification’ purported to advise law enforcement of the client’s right to cannabis as a medical necessity. Respondent advised his clients, and his clients believed, that based on Florida law, the clients had a right to possess, use, and grow cannabis due to medical necessity and that they were protected by the affirmative defense of medical necessity. Respondent did not tell his clients that this affirmative defense would not apply, if at all, until after the clients were arrested, charged, and prosecuted.”

The referee found that a number of the lawyer’s clients were arrested and prosecuted after following the lawyer’s advice.  Somewhat unbelievably, the lawyer refused to refund the fees that he charged after the clients were charged.  The lawyer was ordered to refund the fees when the trial court granted the clients’ motion for disgorgement of attorney’s fees; however, he failed to comply with the order and filed an untimely notice of appeal, which was dismissed. He also failed to respond to the trial court’s order to show cause and failed to appear at the show cause hearing. The court granted the motion for order to show cause and issued a warrant for his arrest.

“In January 2015, the police responded to the residence of the clients with the ‘grow sign’ pursuant to a 911 call.  The next day, the clients contacted Respondent to ask him if they needed to dismantle their growing operation, in expectation that law enforcement would return, and were told by Respondent they had nothing to worry about and that he or someone from his office would contact law enforcement  to discuss the situation. There was no record that Respondent ever did this. In February 2015, a fully armed SWAT team raided the clients’ home, and they were arrested and charged with manufacture of cannabis, possession of cannabis with intent to sell or deliver, possession of a place or structure for trafficking or manufacturing a controlled substance, possession of paraphernalia, and trafficking in cannabis in excess of twenty-five pounds. In response to their arrests, Respondent encouraged the clients to file an internal affairs report regarding the damage done to their home and belongings during the raid. The clients’ home, valuables, and vehicles were ultimately seized and detained for forfeiture.”

“The clients then hired a new attorney and accepted plea deals of three years’ probation, a $15,000 fine, and 100 hours of community service. One of the clients lost her nursing license of twenty-five years and the other lost his engineering job of fifteen years. In addition, their landlord sued them for damages to the home during the raid and lost rent. The landlord prevailed and obtained a judgment in excess of $25,000 against them.”

The referee recommended that the lawyer be found guilty of violating multiple Rules Regulating the Florida Bar, be suspended for two years, and pay the Bar’s costs.  Neither the Bar nor the lawyer filed petitions for review of the referee report and recommendations; however, on July 26, 2017, the Supreme Court issued an order “requiring the lawyer to show cause why the recommended sanction should not be disapproved and a more severe sanction, including disbarment, be imposed.” The lawyer filed a response on August 10, 2017, and the Bar filed a reply on August 21, 2017.

After reviewing the response and reply, the Court found that disbarment was the appropriate sanction citing the lawyer’s incompetence and the extremely serious harm to clients. The opinion also noted that the lawyer “erroneously advised his clients and provided them with legally meaningless ‘Official Legal Certifications’ purportedly authorizing them to grow and use marijuana, based on determinations made by a physician not licensed to practice medicine in the State of Florida. Several clients who relied upon Respondent’s erroneous advice were arrested and criminally prosecuted, and their lives were devastated. Further, during the criminal proceedings pertaining to the clients and during the proceedings in this disciplinary matter, Respondent continued to insist on the correctness of his clearly erroneous legal positions, until he was ordered to show cause to this Court why he should not be disbarred. We will not tolerate such misconduct by members of The Florida Bar.”  The opinion disbarred the lawyer effective immediately.

Bottom line:  This is a quite egregious example of a lawyer’s incompetence (or worse) resulting in a nightmare of consequences for the clients, including a SWAT team raid and criminal charges and convictions.  As this case shows, a lawyer’s advice to clients regarding allegedly legal marijuana growing businesses is fraught with uncertainly and the wrong advice may result in extremely serious consequences for the clients (and the lawyer), particularly with the recent by the recent announcement by the U.S. Attorney General that the federal government will enforce federal criminal laws related to marijuana even if it is legal in an individual state.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Florida Bar opposes lawyer initiated petition to make appeal court finding of frivolousness “conclusive” rule violation

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Bar’s response opposing the Petition initiated by a Florida lawyer to amend Florida Bar Rule 3-4.3 which states that a final decision of the Florida Supreme Court, Florida appeals court, or federal appellate court determining prosecution of a frivolous claim“ constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”    The matter is The Florida Bar Re: Petition to Amend Rules Regulating The Florida Bar 3-4.3, 3-5.3, and 4-3.1 (Case No. SC17-1965).  The Response is here: https://efactssc-public.flcourts.org/casedocuments/2017/1965/2017-1965_response_49952_response.pdf

The proposed rule amendment would add a section to Florida Bar Rule 3-4.3 (misconduct or minor misconduct), providing that if the Florida Supreme Court or any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”

The proposed rule would also require a lawyer who has had such a ruling against him or her to notify the Bar within 10 days with copies to opposing counsel.  Bar counsel would docket the case and “The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”

The BOG Disciplinary Procedure Committee (DPC) voted 7-0 to oppose the proposed petition in November 2017 and the BOG voted unanimously to file a response opposing the petition at its December 8, 2017 meeting.  The Bar filed its response opposing the proposed amendment on December 29, 2018.

Bottom line:  As I previously stated, this is rare member initiated petition to amend the Florida Bar rules.  The rule amendment appears to be well intended; however, it is problematic and ill advised.  The Bar’s Response sets forth the reasons that the Bar opposes the rule amendment, including the fact that a civil case involves different parties, different rules and statutes, different goals, and lower evidentiary standards.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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The Florida Supreme Court rejects Bar proposed advertising Rule amendment on lawyers’ use of “expert” and “specialist”

Hello and welcome to this Ethics Alert update on the Bar’s proposed amendment to Florida Bar Rule 4-7.14 on lawyers’ of “specialization” and “expertise” in advertisements which was filed in response to the federal court opinion which found the rule unconstitutional.  The Bar filed an Omnibus Rules Petition with, inter alia, the proposed rule amendment with the Florida Supreme Court and the court issued an opinion on November 9, 2017 rejecting the proposed rule revisions.  The SC opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf#search=Bar

The proposed amendment would have prohibited a lawyer from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  If the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”  The court’s opinion states:

We decline to adopt the Bar’s proposal to amend Bar Rule 4-7.14 (Potentially Misleading Advertisements). The Bar proposes amendments to this rule in response to a decision from the United States District Court for the Northern District of Florida, which held, in relevant part, that provisions in Bar Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from making truthful statements that they “specialize in” or “have expertise in” a particular field of practice were unconstitutional.

In response to this decision, the Bar recommended amending the rule in subdivision (a) (Potentially Misleading Advertisements) to add a new subdivision (a)(5), which would prohibit lawyers from using in their advertisements the terms “specialist,” “expert,” or other variations of those terms unless the lawyer meets one of the four criteria established in subdivisions (a)(5)(A)-(a)(5)(D). The criteria in subdivisions (a)(5)(A), (a)(5)(B), and (a)(5)(C) are similar to those in other parts of rule 4-7.14. However, subdivision (a)(5)(D) would provide that a lawyer may identify as a “specialist” or “expert” if the lawyer’s “experience and training demonstrate specialized competence in an area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”; if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement must include a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by the Bar or another certification program.

We are concerned that the Bar’s proposal here does not sufficiently address the district court’s decision, and that the language requiring that a lawyer’s experience be “reasonably comparable” to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications. Because we believe that this important issue requires further study, we decline to adopt the Bar’s proposed amendments to rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.

Bottom line:  I previously said that the proposed Bar rule amendment was problematic and may not comply with the federal district judge’s opinion finding that the rule violates the U.S. Constitution.  The Florida Supreme Court has declined to implement the revised rule and the Bar will now go back to the drawing board.

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 Ethics Alert  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

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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