Tag Archives: lawyer ethics

Florida Supreme Court stays lower court case where judge found that Facebook “friendship” with lawyer was not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (12/7/17) Order of the Florida Supreme Court granting the Herssein law firm’s Motion to Stay the lower court proceeding wherein Miami-Dade County Circuit Judge denied a motion to disqualify a lawyer who was a “friend” on the judge on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).  The Herssein law firm’s Motion for Stay is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_114995_motion2dstay2028proceedings20below29.pdf and the December 7, 2017 Florida Supreme Court Order is here:  https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_order_224307_o03bo.pdf.

As I previously blogged, the Third DCA upheld the decision of Miami-Dade Circuit Judge Beatrice Butchko that she was not required to recuse herself from a case in which she was a Facebook “friend” of the lawyer for one of the witnesses/potential parties.  The lawyer was also a former judge with whom she worked before he resigned as a circuit judge.  This decision departs from a previous 4th DCA opinion and an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).

The Third DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

The Herssein law firm had moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which an attorney named Reyes represented a non-party USAA employee in the matter, who was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009).  That opinion states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The Third DCA opinion states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

The Herssein law firm filed a Notice asking the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv). In support of the request, the Notice states:  “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”

Bottom line:  As I said in my previous blogs, the lower court’s order and the 3rd DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and acknowledges that it is in conflict with that opinion; however, it does provide the rationale that each case should be decided by examining the facts and the relationship.  This would seem to create potential confusion and potential disqualification motions would then have to be decided on a case by case basis.  The Florida Supreme Court has now stayed the lower court matter while it presumably looks at the issue and decides whether to invoke its discretionary jurisdiction.

Again, it would seem to be prudent for judges and lawyers who may appear before them not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection, disclose it to all parties, and (the judge may) possibly provide an option to recuse if the party believes that it could be potentially prejudiced.

Stay tuned…and 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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Startup app TIKD sues Florida Bar for alleged antitrust violations; Florida Bar moves to disqualify former president from case

Hello everyone and welcome to this Ethics Alert which will discuss the recent lawsuit filed by Startup app TIKD Services against The Florida Bar and the Ticket Clinic law firm for, inter alia, antitrust violations and the Bar’s Motion to Disqualify its former president, Ramón A. Abadin from representing TIKD, claiming that he was privy to privileged and confidential communications and information related to the matter.  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 owner of the company, Chris Riley, says he got the idea for TIKD after he received a speeding ticket in Miami and had to pay a lawyer and was assessed fines and costs.  He then came up with an app to help motorists challenge their tickets without having to go to court.  The app permits the ticketed person to upload a photo of the ticket and pay a fixed amount.  TIKD then retains an attorney to represent that person and, if he or she is ultimately is assessed with points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.  The TIKD business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by an individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment.  TIKD states that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”

TIKD subsequently filed a lawsuit in federal court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The lawyers representing TIKD include Ramón A. Abadin, a recent former President of the Florida Bar.  The defendants include, among others, The Florida Bar and attorney Mark S. Good, who founded The Ticket Clinic; which has offices in Florida, Georgia and California.

According to the federal lawsuit, 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.  A few months later, attorneys with The Ticket Clinic, a Miami law firm that handles traffic tickets, threatened to report two of TIKD’s lawyers to the Bar if they continued to work with TIKD.  Litigation was later filed and the parties reached a settlement last August; however, TIKD alleges that the Bar and the Miami lawyer firm continued a “concerted effort” to put it out of business and that Ticket Clinic lawyers continued filing “baseless ethics complaints” against attorneys represent TIKD customers.

On December 1, 2017, The Florida Bar filed a Motion to Disqualify Ramón A. Abadin alleging that, during his 2015-16 term as president, he “was provided attorney-client and attorney work-product communications and advice about and involving the specific antitrust issues and allegations asserted in this action”, including an amicus brief that was filed in the U.S. Supreme Court case of North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015).  In that opinion, the U.S. Supreme Court found that the N.C. dental board did not have state action immunity because its decisions were final and not subject to review. The Florida Bar joined in an amicus brief in that case arguing state action immunity should apply.

Bottom line:  This appears to be the one of the first cases filed in Florida which directly alleges that The Florida Bar’s procedures violate the Sherman Antitrust Act based upon the decision of the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  As an added element of intrigue, the Bar’s very recent former president was among the lawyers filing the complaint and the Bar has filed a motion to disqualify him from the matter.

Stay tuned…and 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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Filed under Attorney Ethics, Bar antitrust, Bar regulation and antitrust, BAR UPL antitrust, Florida Bar, Florida Bar TIKD antitrust lawsuit, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer ethics, Lawyer Ethics and Professionalism, North Carolina Dental Board, North Carolina dental whitening case and UPL, UPL and professional speech, UPL North Carolina federal judge opinion on regulation of UPL

Wisconsin lawyer suspended for, inter alia, smuggling heavy toothbrushes and red pepper into prison for client

Hello everyone and welcome to this Ethics Alert which will discuss the recent Wisconsin Supreme Court opinion which suspended a Wisconsin lawyer for four months for, inter alia, bringing heavy toothbrushes to client in prison and failing to adequately communicate with a drunken driving client.  The case is In the Matter of Steven Cohen, Case No.: 2015AP1350-D and the opinion is here: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=202686

According to the opinion, the lawyer was admitted to practice law in Wisconsin in 1996. He received a private reprimand in 2007 after his conviction for one count of misdemeanor disorderly conduct which resulted from an dispute involving the lawyer and his wife.

One count of the disciplinary complaint alleged that, in 2013, the lawyer smuggled two heavy toothbrushes and red pepper to a client who was in prison after being convicted on homicide charges.  Prison authorities found the items in a search of the client after discovering a discarded white pastry bag containing a doughnut and an empty toothbrush package.  The authorities also said that the toothbrushes were heavier than the toothbrushes given to inmates and could be made into shanks (sharpened weapons), and that the crushed red pepper could be made into pepper spray.

The opinion states that: “(w)hen correctional officers interviewed Attorney Cohen about the items, he denied knowing anything about them.  Following additional investigation, Attorney Cohen was arrested for delivering contraband into the Columbia Correctional Institution. In February of 2014, the Columbia County district attorney filed a complaint charging Attorney Cohen with one felony count of delivering illegal articles to an inmate and one misdemeanor count of resisting or obstructing an officer.”

In November 2014, the lawyer pled no contest and was found guilty of a felony count of delivering illegal articles to an inmate, along with two misdemeanors.  Judgment on the felony charge was deferred.  The lawyer said that he brought the items to the prison after his client requested a toothbrush and some food and that his only motive was “from concern for the care of the inmate, and desire to serve.”

The second, third, and forth counts of the complaint alleged that the lawyer accepted a $2,500.00 fee from a DUI client without a written fee agreement and then failed to adequately communicate with the client.  When the client demanded a refund, the lawyer returned half of the fee. He denied that he failed to communicate with the client, but did not provide any documentation to support the denial.  The lawyer also claimed that he had e-mailed the client; however, the client said he did not have an e-mail address.

According to the opinion, the lawyer testified that he did not respond to the client’s telephone calls because he was not ready to speak with the client, which was “a normal trial tactic.”  He also said he did not respond since he tells his clients to call him on his cell telephone rather than his land line, and the client called on his land line. He also claimed his secretary does not take messages on the land line.

The lawyer was suspended for 4 months effective December 29, 2017 and required to pay $8,608.20 in disciplinary costs.

Bottom line:  This lawyer appears to have been attempting to provide an imprisoned client with the tools to injure other inmates, whether in self defense or otherwise.  Obviously, this was improper and the lawyer was suspended for 4 months for those actions, as well as his failure to communicate with another client and charging an improper fee.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer criminal conduct, Lawyer discipline, Lawyer discipline for criminalconviction, Lawyer discipline- criminal misconduct smuggling contraband to client in prison, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements

Louisiana lawyer suspended for submitting false billable hours because he believed his partnership status required them

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court Opinion suspending a lawyer for 30 months with all but one (1) year deferred for false billable hours that he believed were necessary to maintain his partnership position and “in an effort to make himself look better on paper each month.”   The disciplinary case is:  In re: Kenneth Todd Wallace, Case No. 2017-B-0525.  The disciplinary opinion is dated September 22, 2017 and is here:  http://www.lasc.org/opinions/2017/17B0525.OPN.pdf

According to the opinion, the lawyer “joined the law firm of Liskow & Lewis as an associate attorney in 1998. After his promotion to shareholder in 2005, he served as the firm’s hiring partner and head of recruiting. He also chaired the firm’s diversity committee as the firm’s first minority recruiting and retention partner. In 2012, respondent was elected to the firm’s board of directors and served as the board’s junior director through April 2015.”

The lawyer stated that he made the false billing entries because he was concerned that his correct billable hours (along with an insufficient number of clients) were not adequate for a partner with his status.  “When his practice began to decline, (the lawyer) gave in to his own internal pressures and began to submit false time on a dismissed contingency fee matter, and eventually other matters, in an effort to make himself look better on paper each month.”

After the law firm became aware of his false billing in some client matters, the lawyer assisted the firm in conducting a full investigation.  The firm’s investigation showed that, between 2012 through 2015, the lawyer submitted 428 billing entries that the firm believed were “certainly false” and another 220 entries that the firm believed could be false or inflated; however, the law firm concluded that none of the false billing entries adversely affected any of the firm’s clients.

The lawyer had received $85,000.00 in merit bonuses between 2012 through 2015 and the firm concluded he would have received some or all of the bonuses even if he had not inflated his billable hours. The lawyer had also spent significant time with his firm management and committee responsibilities and had also met or exceeded billable targets during the years in question.  The lawyer resigned from the firm in 2015 and gave up his available bonus.

The disciplinary opinion imposed a 30 month suspension with all but one-year deferred.  The suspension was also made retroactive to January 2016, when the lawyer had been suspended on an interim basis pending the outcome of the matter.

Bottom line:  This is a very clear and unfortunate example of a lawyer who most likely destroyed his legal career after succumbing to the stress and pressure of a law partner’s need for large billable hours and a large number of clients (book of business).  I would imagine that, if asked, this lawyer would tell you that it was not worth it.

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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Proposed Virginia Bar ethics opinion finds that AVVO and similar lawyer matching services are unethical

Hello everyone and welcome to this Ethics Alert which will discuss the recent approval of a Virginia ethics opinion which finds that AVVO and similar matching services unethical.  Proposed Legal Ethics Opinion 1885 is here: http://www.vsb.org/site/regulation/leo_1885

On October 27, 2017, the Virginia State Bar voted to approve a draft ethics opinion regarding online attorney-client “matching services”, such as AVVO, which are called “attorney-client matching services” (ACMS),. The opinion finds that a lawyer’s participation in the matching services would violate the Virginia Rules of Professional Conduct.

The opinion does not name any specific services; however, the description of the is similar to the business model of Avvo Legal Services, which allows consumers to purchase legal services for a flat fee.  The opinion describes a business model that it calls an “attorney-client matching service” (ACMS), which it describes as a for-profit entity that provides an online platform for matching attorneys and clients.  An ACMS gives a client a limited scope fee agreement, and the client pays the full fee to the ACMS.

The lawyer does not negotiate the scope of services or the fee or receive any of the client’s money until the services have been performed. Under ACMS’s terms, the lawyer agrees to provide flat fee legal services.  When the matter is completed, the attorney receives the full amount of the legal fee paid by the client.  ACMS then debits the attorney’s account for a “marketing fee” which varies depending upon the amount of the legal fee received.

The opinion identifies five problems with the ACMS business model:

  1. The lawyer is not properly handling the client’s advanced fee because it is allowing a third party to hold the funds. Thus, the funds are not being held in an IOLTA account as required.
  2. Since the lawyer has no access to the client’s money until he is paid in full by the platform, he is unable to fulfill his obligation to refund any unearned fees at the conclusion of the matter.
  3. Without being in control of the definition of the scope of legal services or negotiation of the fee, the lawyer may well be undertaking representation which violates any number of ethics rules. The services may not be appropriate to the client. The fee may not be commensurate with the value of the services provided. The services may be inadequate for the client’s needs. And so on.
  4. The payment of the marketing fee to ACMS constitutes the sharing of legal fees with a non-lawyer.
  5. The payment of the marketing fee constitutes payment for recommending the lawyer’s services.

The opinion criticizes the fact that Avvo holds the fee between the time that the prospective client pays for the services until the lawyer completes the services and states that “the ACMS collects advanced legal fees from a prospective client before the prospective client has had any contact with the lawyer whom she might engage” and that this is a violation of the Bar rules which require that advance fees be held in an the lawyer’s trust account until services are completed.

Under lawyer trust account rules, unearned fees are to remain in trust. As an ACMS is not a law firm, it cannot have an IOTA trust account or hold client fees in trust. Since the fees are not paid to the lawyer, the lawyer is unable hold the funds in trust if same is required under the Bar rules. In addition, under the Bar rules, a lawyer has an to refund any unearned fees at the end of the representation.

The opinion also discusses some potential solutions to the problems with the current model.  Regarding the issue of the lawyer not having control over the fee and the scope of the representation, the opinion did not flatly state that lawyers are prohibited from participating in the ACMS model. It concluded that a lawyer could participate if the lawyer consults with the client and is satisfied that the services can be performed competently and in compliance with the ethical rules before accepting a matter.  The lawyer would also have to exercise independent professional judgment to insure that the fee is not unreasonable or excessive.

The opinion held that the arrangement results in unethical fee sharing with the matching service and “(t)he fact that the ACMS executes a separate electronic debit from the lawyer’s bank account for its ‘marketing fee’ following the firm’s electronic deposit of the full legal fee to the lawyer’s bank account does not change the ethically impermissible fee-sharing character of the transaction.”  The opinion left the possibility that fee splitting might be avoided if the lawyer’s fee was based upon the number of clients received through the platform or the number of inquiries or clicks on their profile.

Bottom line: If this opinion is approved by the Virginia Supreme Court, Virginia will join five other states, New York, New Jersey, Ohio, South Carolina, and Pennsylvania, in disapproving or criticizing the AVVO business model. The New York and New Jersey opinions, which were issued this year, determined that the “marketing fee” taken from the lawyer’s account involves improper fee splitting.

Be careful out there…and stay tuned.

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, AVVO fee sharing and referral fee plans, Avvo legal services, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper referral fees and fee splitting, Lawyer improper sharing of fees - Avvo and matching services, Lawyer independent professional judgment- AVVO and matching services, Lawyer unreasonable fee, New York joint ethics opinion improper referral fees, Non lawyer compensation, Virginia ethics opinion AVVO and lawyer matching services improper

New York Bar opinion states that lawyers must take reasonable steps to protect confidential information in a border search

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York City Bar Association ethics opinion which states that lawyers must take reasonable precautions to protect attorney/client confidential information if the lawyer is searched by U.S border/customs agents (and/or agents of other countries).  The ethics opinion is NYCBA Formal Opinion 2017-5:  An Attorney’s Ethical Duties Regarding U.S. Border Searches of Electronic Devices Containing Clients’ Confidential Information and it is here: NYCBA Opinion 2017-5.

The opinion states that the lawyer should take reasonable precautions, which will be dependent upon various factors, including the sensitivity of the information, the likelihood of disclosure, and the cost and difficulty caused by implementation of the precautions.  The opinion further states that the simplest way to avoid the issue is to not possess any client confidential information when crossing the border and options would include carrying a “burner” telephone, laptop computer, or other digital device, removing confidential information from digital devices, signing out of cloud-based services, uninstalling applications allowing remote access to confidential information, storing confidential information in secure online locations rather than locally on digital devices, and using encrypted software.

If a border agent asserts lawful authority to search an electronic device containing confidential data, the opinion states that the lawyer should try to prevent disclosure which would include advising the border agent that the device contains confidential information and files, requesting that the confidential information and/or files not be searched or copied and, if the agent is not deterred from conducting the search, asking to speak to the agent’s superior. The lawyer should also carry proof of his or her Bar membership to support the argument.

The opinion states that lawyers should also consider having printed copies of the border agency’s policies and/or guidelines on border searches available since, under the U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection guidelines, agents who are advised of a confidentiality claim state that an agent should seek further review to determine whether there is a “suspicion” that the asserted confidential material may constitute evidence of a crime or pertain to matters within the agencies’ jurisdiction.

“Although it is uncertain how border agents apply this ‘suspicion’ standard in actual searches, attorneys should take advantage of this possible avenue for preventing the disclosure of clients’ confidential information.”  Finally, if confidential information is seized or compromised during a search, the affected clients should be promptly notified.

Bottom line:  This ethics opinion appears to be the first to address the issues related to searches of a lawyer’s electronic devices during a border search.  According to the opinion, lawyers who travel outside of the United States should take reasonable measures to avoid disclosure of client information if U.S. border agents (or border agents of another country) search their electronic devices and, if confidential or privileged material is disclosed, lawyers must notify the affected clients.  My recommendation to lawyers is to avoid the issue by carrying “burner” devices and not having any client confidential information when crossing the border or, if that option is not feasible, storing confidential information in a secure online location and/or using encrypted software.

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/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Ethics opinion- lawyer protecting client confidential information in border search, Ethics opinion- protecting client confidential information on digital devices, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

Ohio lawyer receives 1 year stayed suspension for citing to, inter alia, the client’s “potentially illegal actions” in motion to withdraw

Hello everyone and welcome to this Ethics Alert which will discuss the recent Supreme Court of Ohio opinion imposing a one-year stayed suspension on a lawyer who filed a motion to withdraw which revealed attorney/client confidential information without the client’s permission or an exception authorizing the disclosure.  The case is Cleveland Metro. Bar Assn. v. Heben, Slip Opinion No. 2017-Ohio-6965 (July 27, 2017) and the opinion is here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-6965.pdf

According to the opinion, the lawyer had briefly represented the client in 2008 during the initial stages of her divorce case.  The divorce proceedings were still pending in September 2013 and the client again retained the lawyer for legal assistance. The parties stipulated to the following facts in the Bar matter: (1) the client paid the lawyer a $3,000 retainer on or about September 15, 2013, (2) the lawyer filed a notice of appearance in the divorce case on September 16, 2013, and (3) less than two weeks later, the client terminated the lawyer’s legal services.

After the client terminated his services, the lawyer moved to withdraw as counsel and also submitted a supporting affidavit purporting to state his reasons for seeking withdrawal with the motion. According to the opinion, in the affidavit, the lawyer “recounted communications he had had with (the client) about the scope of his representation and his compensation, accused her of refusing to pay his agreed-upon fees ‘without cause,’ and disclosed legal advice that he had given her. He also described (the client’s) discharge of him as ‘retaliatory’ and alleged that it had ‘occurred because of [his] advice to her concerning her objectionable and potentially illegal actions’ relating to her exhusband, which he characterized as ‘a problem similar to the one [he] experienced in [his] previous representation of her.’”

The judge in the divorce case struck the lawyer’s affidavit from the record and, in his testimony at the disciplinary hearing, the judge stated that he believed that the contents of the affidavit, specifically the disclosure of attorney/client communications, were inappropriate and not necessary to seek withdrawal.

The opinion imposed a one-year suspension which was stayed on the condition that he “commit no further misconduct.”  Two justices dissented and “would suspend respondent for one year with six months stayed”, which was the recommendation of the Disciplinary Board.

Bottom line:  As this case again illustrates, lawyers must never reveal confidential attorney/client confidences in court documents, including a Motion to Withdraw, unless the client authorizes the disclosure or an exception applies which would permit or require the disclosure.

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 discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Ethics and lawyer withdrawal, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing confidential information in motion to withdraw, Lawyer sanctions