Tag Archives: lawyer ethics

Pennsylvania lawyer disbarred after practicing law for 17 years while under administrative suspension

Hello everyone and welcome to this Ethics Alert, which will discuss a recent disbarment of a lawyer who continued to practice law for 17 years while suspended for failing to pay the annual registration fee.  The case is Office of Disciplinary Counsel v. Jason Michael Purcell, No. 2651 Disciplinary Docket 3, No. DB 2018 and the October 31, 2019 Pennsylvania Supreme Court Order disbarring the lawyer with the detailed Report and Recommendations of the Pennsylvania Disciplinary Board dated September 4, 2019 is here:  http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/142DB2018-Purcell.pdf

According to the Disciplinary Board Report, the lawyer was suspended on December 1, 2002, for failing to pay his annual attorney registration fee; however, he continued to claim that he was a practicing attorney through social media.  He claimed on LinkedIn that he had “15-plus years of diverse legal experience” and that he was licensed to practice in California, Maryland, New York, Pennsylvania and the District of Columbia.

The lawyer also falsely claimed that he held several jobs in the legal field, including working as in-house counsel and an associate broker for a private boutique real estate firm in New York from 2012 to 2017.  The Report also found that the lawyer had appeared as counsel in a drunken driving case and custody matter in 2005, worked as counsel of record in a drug case, and helped prepare a petition to recanvass voting machines in 2006.

The lawyer also represented an individual in an abuse protection matter in 2018 and told the judge in that matter that he had been reinstated; however, he never provided any documents showing that he had been reinstated.

According to the Report: “During his lengthy period of administrative suspension, respondent engaged in serious professional misconduct by continuing to hold himself out to the public as an active member of the Pennsylvania Bar and representing clients in at least five legal matters in the Commonwealth of Pennsylvania.”

The lawyer was also convicted of driving under the influence of alcohol twice and he was charged with a third DUI in 2006; however, he failed to appear in the case.

The lawyer failed to respond to the disciplinary charges and did not appear at the disciplinary hearing.  The Supreme Court adopted the findings in the Board report and disbarred the lawyer.

Bottom line:  It is very surprising, to say the least, that this lawyer was able to practice for 17 years while under suspension for failing to pay his annual attorney registration fee.  It is somewhat more surprising that the lawyer did not address and pay the registration fee and request reinstatement.  Finally, it is surprising that the lawyer failed to participate in the disciplinary proceedings; however, this may be at least partially explained by the fact that he was convicted of driving under the influence of alcohol twice and was charged with a third DUI in 2006, but failed to appear.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, false statements, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment for practicing while suspended, Lawyer discipline, lawyer discipline for failure to respond to complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer misleading law firm information in advertising, Lawyer sanctions, Lawyer social media ethics, Lawyer unauthorized practice of law while suspended, Lawyer unlicensed practice of law, Lawyer violation of court order, Pennsylvania lawyer disbarred for practicing law while under administrative suspension, Uncategorized

Ransomware attack against South Florida digital record storage entity block law firm’s access to electronic records

Hello everyone and welcome to this Ethics Alert, which will discuss a recent Miami Herald article discussing a ransomware attack against a South Florida software company that manages electronic records for thousands of law firms nationwide in which digital legal documents have been held hostage.  The October 25, 2019 Miami Herald article is here:  https://www.miamiherald.com/news/local/article236645058.html

According to the Herald article, “a Florida law firm was forced to request more time to meet a filing deadline in a gender-discrimination employment case in federal court because it could not access its electronic documents stored with TrialWorks.”  “The firm’s attorney representing the deputy (in the Citrus County federal gender discrimination lawsuit) cited the TrialWorks’ software problem, saying the company ‘has shut down access’ to critical documents in the case. The law firm needed the documents to address a dispute over the testimony of an expert witness for Citrus County. Its response was due Friday (October 25, 2019).”

“Since Oct. 11, 2019, plaintiff’s counsel, as well as other TrialWorks clients, have been unable to access documents,” says the law firm’s motion requesting more time. “As of Oct. 24, 2019, plaintiff’s counsel remains unable to access all the necessary documents required to respond.”  “The deadline issue was quickly resolved because attorneys for Citrus County did not oppose the law firm’s request. Melton’s firm has until Nov. 14 to respond, assuming it can gain access before then to crucial records at TrialWorks.”

The article also states:  “TrialWorks acknowledged it ‘was recently targeted by a ransomware incident that did not affect our software but did prevent approximately 5 percent of our customers … from accessing their accounts.’”  “In a statement, the company said it started an internal investigation and retained independent cybersecurity experts. “We have been working around the clock to restore normal operations for our customers as quickly as possible, and nearly all customers have had access restored within a week.”  “Company officials said they have not contacted federal authorities about the ransomware attack but plan to share information from the internal investigation with law enforcement.”

“Earlier this month, TrialWorks began alerting its customers about the security breach and initially indicated it was caused by a Microsoft service outage affecting Outlook desktop and mobile apps, according to court records. But the company’s customer alerts became more ominous over the past two weeks, including one that cited a ‘ransomware incident.’”

Bottom line:  This unfortunate ransomware incident highlights the vulnerability of digital information, including information stored digitally by litigation document assistance providers such as TrialWorks.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

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, Florida Lawyer Ethics and Professionalism, fraud, joe corsmeier, Joseph Corsmeier, Lawyer competence technology, lawyer confidentiality, Lawyer digital document protection, Lawyer digital document security breach, Ransomware attack, Uncategorized

Florida Bar Board of Governors finds that “Ambulances Chase Us” is improper and law firm can advertise “1-800-411-Pain”

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG) decisions to uphold the Florida Bar Standing Committee on Advertising (SCA) decision that “Ambulances Chase Us” is deceptive or misleading and reverse an SCA decision that a law firm’s billboards advertising the telephone number “1-800-411-PAIN” are misleading.

At its September 20, 2019, the BOG voted to uphold an SCA decision that the slogan “Ambulances Chase Us ”is deceptive or misleading under Rule 4-7.13(a) because it is “both unethical and illegal for ambulance drivers to solicit cases for lawyers and because it is factually and legally inaccurate.”

The Board Review Committee on Professional Ethics (BRC) voted to uphold the SCA finding that the advertisement is impermissible.  The BOG voted 18-14 to uphold the SCA finding.

At the same meeting, the BOG also voted, without debate, to reverse an SCA determination regarding billboards that advertise the telephone number “1-800-411-PAIN.”  As background, the SCA had voted to find that billboards are misleading under Bar Rule 4-7.13(a) because the advertisements are on behalf of the private law firm but advertise the telephone number “1-800-411-Pain” in North and Southwest Florida which was used by the now-defunct lawyer referral service called 1-800-411-Pain.  The telephone number is also currently being used by a new qualifying provider/lawyer referral service called “Path” in Southeast and Central Florida.

The law firm had argued, inter alia, that the advertisements were not misleading because they clearly show the law firm’s name. The law firm also stated that, at the BRC’s request, it will answer the telephone with the law firm’s name.

Bottom line:  There was apparently some discussion at the BOG meeting that the “Ambulances Chase Us” slogan was just an attempt at humor and was not misleading and the final 18-14 BOG vote was very close.  The 411 Pain vote reverses the SCA determination that the use of the telephone number was misleading.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Florida lawyer advertising "411-Pain", Florida lawyer advertising "Ambulances Chase Us", Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Lawyer advertising, Lawyer advertising rules, Uncategorized

Iowa lawyer suspended for 4 months without possibility of reinstatement for misappropriating fees from his law firm

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Iowa Supreme Court opinion which suspended a lawyer for 4 months without the possibility of reinstatement for misappropriating fees from his law firm and stated that “(w)e think the time has come to ratchet up the disciplinary sanctions for nonclient theft.”  The case is Iowa Supreme Court Disciplinary Board v. Curtis Den Beste, No 19-0360.  The September 13, 2019 Iowa Supreme Court opinion is here: https://www.iowacourts.gov/courtcases/7209/embed/SupremeCourtOpinion.

The lawyer began practicing law in Iowa in 2000.  He received an offer in 2007 to practice with a law firm and entered into an agreement with the law firm regarding fees.  The agreement required him to deposit all earned client fees into the firm trust account or the general/operating account and he would be paid fifty percent of the earned fees and the firm would keep the remainder.

Beginning in 2015, the lawyer accepted cash payments for fees from some clients and kept the fees instead of depositing them as required by his agreement with the firm.  According to the opinion, after his misconduct was discovered, “(the lawyer) agreed to self-report his misconduct to the disciplinary board and to provide an accounting of the diverted funds as well as a repayment plan.”

The lawyer’s accounting (which was confirmed by the Iowa Bar/Disciplinary Board) showed that he received a total of $18,200.00 and, after for the fifty-percent split and other tax and reimbursement considerations, the lawyer wrongfully misappropriated $9,200.00 from the law firm.

“It is certainly true that, in many cases, fee disputes between a lawyer and his or her current or former law firm might simply be contract disputes and nothing more. For example, a lawyer with a good-faith claim to fees should not be sanctioned merely for exercising or asserting such a claim. But not all fee disputes between a lawyer and a law firm are garden variety contract disputes. Some involve outright and undisputed theft. In such cases, the imposition of discipline is clearly appropriate.”

“The question then arises whether theft from a client is more serious than theft from a law firm or other third party. In our prior cases, the difference has often been dramatic. Theft of any amount by a lawyer from a client ordinarily results in revocation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 925 N.W.2d 163, 170–71 (Iowa 2019); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500–01 (Iowa 2017). But theft of funds from a law firm can result in much lesser sanctions. Henrichsen, 825 N.W.2d at 529–30.”

“There are, perhaps, some reasons for the distinction between client theft and law firm theft. For instance, many clients have little power against a lawyer in whom the client places trust. A lawyer who steals from a client is preying on those often in an extremely vulnerable position who have placed trust in the lawyer and advanced funds to the lawyer to protect their interests. The relationship between a law firm and a lawyer ordinarily will have less of a power imbalance. The firm is in a better position, perhaps, than a client to monitor the proper handling of fees.”

“Yet, a lawyer who acts dishonestly toward an employer raises serious questions of whether the lawyer has the necessary integrity to practice law.”

“(W)e think the time has come to ratchet up the disciplinary sanctions for nonclient theft. That said, this case may not be the appropriate case to do so. In particular, given our caselaw, Den Beste was not on notice that he faced a possible revocation when he entered into the stipulation in this case. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cepican, 861 N.W.2d 841, 845 (Iowa 2015) (finding the attorney did not waive his right to contest a complaint of theft-based misconduct by failing to respond because he did not receive adequate notice of the allegation of theft). Thus, we rely on our precedent and impose a sanction in this case consistent with our prior cases. At the same time, we use this case as a vehicle to put the bar on notice that an attorney who steals from a law firm without a colorable claim may well incur stiffer disciplinary sanctions than have been imposed in our past cases.”

Thus, we rely on our precedent and impose a sanction in this case consistent with our prior cases. At the same time, we use this case as a vehicle to put the bar on notice that an attorney who steals from a law firm without a colorable claim may well incur stiffer disciplinary sanctions than have been imposed in our past cases.

“Upon full consideration of this matter, we order that the license of Curtis W. Den Beste to practice law in Iowa be suspended indefinitely with no possibility of reinstatement for a period not less than four months, effective with the filing of this opinion.”

A dissenting justice would have revoked the lawyer’s license to practice law.

“On multiple occasions, Den Beste knowingly embezzled money from his law firm and then attempted to conceal what he had done. He had no colorable claim to nor was there any fee dispute regarding that money. “[I]t is almost axiomatic that the licenses of lawyers who convert funds entrusted to them should be revoked.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Irwin, 679 N.W.2d 641, 644 (Iowa 2004). Accordingly, I would revoke Den Beste’s license to practice law.”

Bottom line:  The opinion discusses the differences between law firm theft and theft from the client and others.  The Iowa Supreme Court has provided notice to lawyers that future law firm theft will result in stiffer disciplinary sanctions than in the past.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney discipline, Attorney Ethics, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer criminal conduct, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misappropriation, Lawyer misappropriation of fees, Lawyer stealing from law firm, Misappropriation from law firm suspension, Uncategorized

Florida Bar Board of Governors approves Bar rule revision prohibiting misleading law firm information in all advertisements

Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar Board of Governors (BOG) approval of revisions to Florida Bar Rules 4-7.13 which would prohibit misleading law firm information in advertisements.

The BOG unanimously approved the proposed rule revisions amending Florida Bar Rule 4-7.13 to prohibit misleading digital advertisements.  As I previously reported, the BOG ethics committee previously voted down a proposal to add Bar Rule 4-7.13(c) which would have stated that “it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the internet or other media, including directly or through a group advertising program.”

The revised Bar rule does not address purchasing a competitor’s name through Google AdWords but would prohibit all advertisements from stating or implying that a lawyer is affiliated with the advertising lawyer or law firm in a way that misleads a person searching either for a particular lawyer or law firm or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

The proposed rule revision is below.

RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING ADVERTISEMENTS

(b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain:

(11) a statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

The revised rule also includes a subsection (12) setting forth “Examples of Deceptive or Inherently Misleading Advertisements.”

(12)  A statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to knowingly contact a different lawyer or law firm.

The Florida Bar will now file a Petition including revised Rule 4-7.13 will now be filed with the Florida Supreme Court, which will review it and determine whether to implement the proposed rule.

Bottom line:  As I previously blogged, if the BOG takes final action on the proposed revised Rule 4-7.13 prohibiting all of these types of misleading advertisements (and if the Florida Supreme Court implements the revised rule), this would be consistent with other jurisdictions that have considered the issue.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

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Filed under Attorney Ethics, Florida Bar, Florida Supreme Court, Lawyer advertising, Lawyer advertising and solicitation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer using GoogleAd words to misdirect users, Uncategorized

California ethics opinion addresses issues related to a lawyer accepting damaging document provided by a witness

Hello everyone and welcome to this Ethics Alert, which will discuss the recent California ethics opinion which addresses ethics issues related to accepting a damaging document provided by an individual (witness).  The ethics opinion is Los Angeles County Bar Association (LACBA) Ethics Opinion 531 (July 24, 2019) and is here: https://www.lacba.org/docs/default-source/ethics-opinions/archived-ethics-opinions/ethics-opinion-531.pdf

The detailed opinion sets forth the scenario when a lawyer is offered access, by a witness who is an unrepresented former employee of the opposing party, to potential documentary evidence and is advised that it will show the adverse party’s failure to comply with discovery obligations.  The opinion discusses whether the lawyer can and/or should ethically use the document and “the ethical risks and potential adverse consequences of taking possession or reviewing the material are significant” when there is “reasonable cause” to believe that the document contains protected or privileged information.

According to the opinion, the lawyer must first determine whether the individual violated the law by obtaining or possessing the materials.  If the lawyer does not have the competence to make that decision, he or she should consult with another lawyer who has knowledge of criminal law. If a law was violated and the lawyer obtains the document, he or she may be ethically required to turn over the document to the court or to the appropriate legal authorities.

The lawyer should also address whether the document or data includes material that is subject to protection under the attorney-client privilege, confidentiality, or the attorney work-product doctrine. If it becomes “reasonably apparent” to the lawyer that the documents are privileged, the lawyer would be ethically obligated to stop reviewing the document and provide notice to the privilege holder, the owner of the work product, or their counsel.

The lawyer should also keep the client informed when receiving the evidence is a significant development or if it limits the actions that the lawyer is able to take and the lawyer may be required to inform the client about the impact of any dispute over entitlement to the evidence, including the potential financial impact, including legal costs, and potential delay.  The lawyer should also consider other issues to be reviewed and discussed with the client, which would include the possibility of the lawyer being disqualified from the case and possible sanctions that could adversely affect the client’s case.

Bottom line: This California ethics opinion provides a good overview of the ethical issues (i.e. minefields) which are present when an individual tries to provide the lawyer with an alleged “smoking gun” document and discusses what the lawyer should do to protect him or herself ethically.

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, attorney/client privilege, California Ethics Opinion accepting damaging document from witness, Ethical duties using potentially improperly obtained document, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer lack of competence, Lawyer lack of diligence, Lawyer negligence, Uncategorized

U.S. Sixth Circuit Court of Appeals strikes down Ohio law which prohibited solicitation of potential workers’ compensation claimants

Hello everyone and welcome to this Ethics Alert, which will discuss the recent United States Sixth Circuit Court of Appeals opinion which struck down an Ohio law which prohibited solicitation of potential workers’ compensation claimants as a violation of the First Amendment of the U.S. Constitution.  The case is Bevan & Associates v. Yost, Case No. 18-3262 (U.S. Sixth Circuit Court of Appeals) and the July 8, 2019 opinion is here: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0144p-06.pdf

The Ohio statute prohibited all solicitations to represent claimants or employers in workers’ compensation cases.  The statute states as follows: “No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the bureau or commission.” Ohio Rev. Code § 4123.88(A).

The Ohio statute had an exception permitting access to journalists and, according to the opinion, “Bevan hired Capital Publishing, a journalistic service, and Regina Mace, a former client and apparent journalist, to use the journalist exception to gain access to the Bureau’s claimant information. Bevan then combined the information it acquired from the journalists with information it had obtained from other outlets (including claimant information obtained from the Bureau prior to the 2006 amendments) to compile a list of individuals who would eventually receive direct mail advertisements. Bevan then sent advertisements to these potential customers.  The advertisements were addressed to ‘INJURED . . . WORKER’ and alerted the worker to the fact that they might be ‘entitled to an additional CASH AWARD for your injury that the Ohio Bureau of Workers Compensation (BWC) has not told you about!’ R. 38-2, Page ID 172–73. Bevan’s letters also included a disclaimer which stated that ‘This ADVERTISING MATERIAL is not intended to be a SOLICITATION under Ohio’s Rules governing lawyers, as it is unknown whether the recipient is in need of legal services.’”

The law firm filed the federal lawsuit after the journalist received a subpoena from an Ohio grand jury investigating a possible violation of the Ohio law.  Lawyers for the state of Ohio argued that the solicitation prohibition was part of a larger statutory structure restricting access to claimant address information from the state workers’ compensation bureau, which was adopted in 2006.

According to the opinion:  “(T)he First Amendment provides “protection, in pertinent part, against laws ‘abridging the freedom of speech.’ U.S. Const. amend. I. Although the First Amendment ‘accords a lesser protection to commercial speech than to other constitutionally guaranteed expression,’ Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), it nonetheless protects truthful commercial speech that is not related to unlawful activity, id. at 564.”

“Under the framework of Central Hudson, when analyzing regulation of commercial speech, we follow a four-part test. (1) The commercial speech must not be misleading nor relate to unlawful activity, for the First Amendment does not protect ‘commercial messages that do not accurately inform the public about lawful activity.’ Id. at 563–64. If this criterion is satisfied, the regulation can survive only if (2) the government can show a substantial interest in restricting the commercial speech, (3) the regulation at issue directly advances the governmental interest, and (4) the regulation is ‘designed carefully to achieve the State’s goal.’ Id. at 564.  A regulation is ‘designed carefully’ if it directly advances the asserted government interest and there is no more narrow regulation that might achieve the same goals. Id.”

The opinion held:  “Because Ohio’s interest in protecting claimant privacy cannot outweigh Bevan’s right to engage in commercial speech, and because § 4123.88(A) completely bars solicitation, the statute fails the Central Hudson test.”  The opinion further found that, even if the law firm had violated the Ohio law prohibiting access to claimant information, this would not be relevant to the issue of whether the blanket solicitation prohibition is constitutional since, on its face, the statute prohibits all solicitation of claimants, no matter how the information was obtained and, “(a)s written, this prohibition is repugnant to the free speech clause of the First Amendment.”

Bottom line:  This case is certainly consistent with other federal and U.S. Supreme Court decisions which prohibit states from enacting blanket prohibitions of direct solicitation of clients; however, the opinions do permit the states to place reasonable “time, place, and manner” restrictions on such activities, such as Florida’s 30 day restriction on solicitation of potential personal injury clients and other advertising disclosure/disclaimer requirements.

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, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer solicitation of workers' compensation claimants and employers, Ohio statute prohibiting solicitation of workers' compensation stricken by federal appeals court, Uncategorized