Tag Archives: Lawyer competence

Lawyer’s ethical duties and responsibilities when a represented person requests a second opinion

Hello everyone and welcome to this Ethics Alert which will discuss the lawyer’s ethical duties and responsibilities when a represented person contacts the lawyer to obtain a second opinion.  Although a lawyer is permitted to render a second opinion to a represented person who initiates the contact with the lawyer, there are important ethical and practical issues which should be considered before the lawyer agrees to do so.

A threshold issue is whether a second opinion would be an improper communication with a person represented by counsel.  In 2002, the ABA added a sentence to paragraph 4 of the Comment to Model Rule 4.2 which makes it clear that lawyers can provide second opinions if the lawyer is not representing another individual in the same matter.  Model Rule 4.2 has been adopted in substantial form by most jurisdictions, including Florida.  The Comment states:

(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.

Florida Bar Ethics Opinion 02-5 (March 3, 2013, rev. August 24, 2011) discusses types of information a lawyer can give to an individual who is seeking a second opinion as well as potential solicitation.  The opinion states that, a lawyer may provide information about the lawyer’s availability and qualifications when contacted by an individual and if the information is requested.

The opinion concludes:

… a lawyer may provide a second opinion to a person who is represented by counsel at the person’s request. In providing the second opinion, the lawyer must give competent advice, and in doing so should carefully consider any limitations with which the lawyer is faced. Rule 4-1.1, Rules Regulating The Florida Bar. The lawyer should scrupulously avoid improperly soliciting the person. The lawyer may discuss what services the lawyer would be able to provide if the represented person requests not merely a second opinion, but also information about the lawyer’s availability and qualifications. Whether or not particular communications between the lawyer and the represented person might be considered tortious interference with an existing lawyer-client relationship is a legal question, outside the scope of an ethics opinion.

As is stated in the above ethics opinion, before giving a second opinion, the lawyer should consider whether he or she can competently render the opinion.  In order to be competent, the lawyer might need to review the client’s file, which may only be available through the client’s current lawyer.

South Carolina Bar Opinion 97-07 (1997) states:

…A lawyer may discuss a pending legal matter with a client who is represented by another attorney. If the client is seeking a second opinion based on a subjective opinion rendered by the client’s attorney, the lawyer should carefully consider the basis of the advice of the client’s attorney and may be required to consult with the client’s attorney in order to give competent legal advice. If so, the lawyer should advise the client accordingly prior to giving any opinion or advice.

A lawyer who provides a second opinion is also creating an attorney/client relationship and attorney/client confidentiality would apply.  The scope of confidentiality is extremely broad and includes all information related to the representation, including the fact that the client came to the lawyer for a consultation; therefore, the lawyer would not be able to contact the person’s current lawyer, unless the client consents or there is an exception to the confidentiality rule.

Oregon State Bar Opinion 2005-81 (Revised 2014) states:

A lawyer may provide a second opinion to a potential client regarding the quality of work done by another lawyer. The lawyer may not inform the other lawyer of the client’s request unless the client consents or another exception to the duty of confidentiality is applicable.

Bottom line:  It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.

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

Leave a comment

Filed under Attorney Ethics, Confidentiality, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Uncategorized

New Jersey lawyer receives censure for neglecting client matters, failing to communicate with clients, and fraud and dishonesty

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order which adopted the findings of the New Jersey Disciplinary Review Board and censured a lawyer for neglecting client matters, failing to communicate with clients, and engaging in conduct involving fraud or dishonesty.  The case is In The Matter of John R. Dusinberre, D-37 September Term 2015 078531 (Supreme Court of New Jersey April 5, 2017).  The New Jersey Supreme Court Order is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1082216 and the Disciplinary Board (DRB) Decision dated November 9, 2016 is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1077667

According to the DRB Decision, the lawyer was charged with violating Bar rules in four separate matters:

“In the first matter, respondent represented Anthony Domenick and 407-409 Summer Associates, LLC for a Paterson condominium development known as ‘Sandy Hill at Summer Street.’ The terms of the representation called for respondent to file a public offering statement (POS) with the New Jersey Division of Community Affairs (DCA) and to record a master deed in the county clerk’s office. Respondent told his client that he had filed the POS with the DCA and furnished him with a copy of a November 12, 2007 POS carrying registration number ‘04368.’ Respondent stipulated that he never filed a POS with the DCA. Rather, he had fabricated the POS and created a fictitious registration number; the DCA had never assigned a registration number to the Sandy Hill project. Although respondent also failed to record the master deed, he either informed his client, or led him to believe, that he had done so.

“In a second matter, respondent represented a client identified only as ‘Mr. Cerquirra’ and ‘88 St. Francis LLC’ regarding a condominium development project at 88 St. Francis Street in Newark. The representation required respondent to register the project with the DCA and to obtain a registration order. Respondent informed the client that he had obtained a registration order for the project from the DCA. He also gave the client an October 27, 2008 letter, purportedly from DCA’s Manager of the Planned Real Estate Department, Stewart P. Pallonis. Enclosed with that letter was an order of registration from the DCA carrying registration number 04487, and signed ‘Stewart P. Pallonis.’  In fact, respondent never registered the 88 St. Francis Street project with the DCA. Rather, he had fabricated both the Pallonis letter and the registration order, signing Pallonis’ name to both documents before giving them to the client.

“In a third matter, respondent represented Sterling Properties (Sterling) for a Cedar Knolls condominium project known as ‘Viera at Hanover.’ The representation required respondent to register the project with the DCA, but he failed to do so. Respondent, nevertheless, led Sterling to believe that he had registered the project with the DCA, knowing that he had not done so. In reliance on respondent’s false information, Sterling went forward with the project.

“In a fourth matter, respondent represented Sterling for another condominium project in Piscataway. That representation, too, required respondent to register the project with the DCA. Again, respondent failed to do so. Respondent led Sterling to believe that the Piscataway project, too, was registered with the DCA, knowing that it was not. Relying on respondent’s statements, Sterling proceeded with the development project.”

“During respondent’s entire thirty-four-year career at MSLD, he reported to Barry Mandelbaum, the managing attorney, and twelve years his senior. Respondent described Mandelbaum as a “benevolent despot” and a “mentor.” Respondent was never “encouraged” to generate business for the firm. Rather, he tended to work on legal matters that Mandelbaum generated.

“Respondent described his relationship with Mandelbaum as a stressful one. Mandelbaum would berate respondent publicly, place notes on respondent’s door about perceived failings, and subject him to ‘105 decibel,’ public ‘dress downs,’ all of which were extremely embarrassing.

“As the law firm grew larger, younger attorneys became partners. By the mid-2000s, some of those partners had come to expect respondent to complete work on projects that they had generated, placing additional pressure on respondent to perform.

“Several years before respondent engaged in the within misconduct, MSLD established an executive committee to manage the law firm. Respondent perceived that the new arrangement rewarded some of the younger, income-generating attorneys, at his expense. Feeling exposed, he became “terrified” about losing his job. At that juncture, he grew even more reliant on Mandelbaum for protection:

So my desire and drive to please him became extremely strong. And I can’t tell you the number of times when I would have an issue with a client, I would hear the client five minutes later on the phone with Barry and then I would hear Barry’s footsteps stomping down the hall to basically dress me down or yell at me and to confront me, or whatever it might be very publicly.

And it was extremely upsetting and got to the point where I went from a lawyer who loved to go to work every day to a lawyer who dreaded pulling into the parking lot of my law firm, counting whose cars were in to try and decide whose work I should be doing that day so that I wouldn’t get yelled at or — or, you know, almost — I almost use the word bullied, although I’m an adult and was an adult at the time, and it’s a hard concept to have, but it’s the desperate situation I found myself in. (T20-10 to T21-2.)

“Worried about being ‘kicked out’ of MSLD, respondent felt tremendous pressure to complete tasks on time, according to schedules that other attorneys prepared for him. Also pressing was the fear that, because he was over sixty years old and had never been in another legal setting, he could not strike out on his own.”

The DRB Decision also found that the lawyer had no prior discipline, expressed remorse for his misconduct, and paid former clients, the firm and the DCA hundreds of thousands of dollars as restitution.  The DRB recommended a censure (which is a stronger sanction than a reprimand in New Jersey).  The New Jersey Supreme Court adopted that sanction and censured the lawyer.

Bottom line:  This case is unusual, to say the least.  Although the lawyer provided significant mitigation (including the serious “berating” by a supervising partner and “cracking under the pressure” of the partner’s criticism), his underlying misconduct, including his multiple false statements to clients, neglecting client matters and failing to communicate, would appear to be serious enough to merit a suspension, notwithstanding the mitigation that he provided.  The lawyer was in his 50’s and 60’s when the misconduct occurred. One could certainly conclude that the lawyer’s testimony about the “pressure” of the practice was somewhat of an excuse and not an explanation.

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

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, Communication with clients, deceit, dishonesty, fraud, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements to clients, Lawyer lack of communication with client, Lawyer lack of diligence, Lawyer lying to clients, Lawyer misrepresentation, Lawyer sanctions, Uncategorized

Florida Bar’s Board of Governors approves increase in CLE hours and revision to the comment to Rule 4-1.1 to require technology competence

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent approval by The Florida Bar’s Board of Governors of amendments to the rules related to technology and increasing the required CLE from 30 to 33 hours, with 3 hours of technology.

The Florida Bar’s Board of Governors (BOG) met on July 24, 2015 and approved a proposed amendment to the Bar Rule 6-10.3, minimum continuing legal education standards, which would increase the minimum CLE requirements from 30 to 33 hours and also require 3 CLE hours in, inter alia, technology related education for each three year cycle. The proposed amendment would maintain the 5 hour minimum requirement for legal ethics, professionalism, bias elimination, substance abuse, or mental illness.  The BOG also approved an amendment to the Comment to Bar Rule 4-1.1 of the Florida Bar rules to emphasize that a lawyer must be competent in the use of technology (or hire someone who is), and understand of the risks and benefits associated with the use of technology.

The approved rule amendments will be submitted in an omnibus petition to amend The Florida Bar Rules, which will be filed with the Florida Supreme Court in the fall of 2016.  Florida lawyers will be solicited to comment on the revisions and those comments will be sent to the Florida Supreme Court with the proposed rule amendments.

Bottom line:  If the rule amendment is approved by the Supreme Court, the minimum CLE hours required of Florida lawyers will increase from 30 to 33 hours every three (3) years, with 3 hours of technology related CLE.  The comment to Rule 4-1.1 will also put lawyers on notice that they must be competent in the use of technology (or hire someone who is).

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

 

Leave a comment

Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer lack of competence, Lawyer technology competence