Florida Bar Best Practices for Professional Electronic Communication: electronic hearings or proceedings

Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar’s Henry Latimore Center for Professionalism with Best Practices for Professional Electronic Communication, specifically considerations for lawyers during electronic hearings or proceedings.  The publication is online here: https://www-media.floridabar.org/uploads/2020/06/ADA-E-communication-FINAL_May-2020.pdf 

            The Bar publication is very extensive and provides guidance on various topics, including e-mail, texting, social media, telephone/cell phone, laptops, and electronic hearings and proceedings, and it is an important resource for lawyers and non-lawyers.  The publication has the following tips regarding electronic hearings and proceedings:  

  1. Considerations for Lawyers During Electronic Hearings or Proceedings

Lawyers should continue to be civil and adhere to The Florida Bar’s Professionalism Expectations while fulfilling the fundamental duties to the client and the judicial system. Begin by ensuring the individual needs of your client are being met by confirming their access to the proper technology needed to conduct virtual hearings (computer with internet, smartphone, or landline). Plan a method to communicate confidentially with your client before and during the hearing or proceeding to discuss and resolve any issues.

Best practices include the following:

• Coordinate frequent conference calls and emails before the hearing or proceeding.

• When discussing client matters at home, ensure all listening devices such as Amazon Alexa or Google Home are muted or turned off.

• During the hearing, ensure the virtual platform allows for “private chats” or “breakout rooms” so that you may chat confidentially and directly with your client.

• Plan to appear via video and audio. In order to testify, the court will need to see the individual in order to swear that person in under oath.

• Witnesses should be prepared to provide the court with a driver’s license number or other state identification card number.

• Virtual platforms may not work well with other devices on in a single room. Distance yourself accordingly.

• Be aware of your surroundings. You still have a duty of confidentiality to your client, which extends beyond just information the client wants to keep secret. Instead, that duty extends to all information learned in the course of representation. Just because the court hearing is public does not mean that you should be sharing the content of the hearing with others in your workspace. If you have a video or teleconference, find a location that is apart from others and that respects the privacy expectations of your client and the decorum expected by a court.

Bottom line:  This Florida Bar publication is a great resource and I would recommend that it be consulted for guidance on these issues, which will continue to be more important in the future.  

            Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Posted in ethics related to electronic hearings and proceedings, joe corsmeier, joseph corsmeier, remote hearings and proceedings ethics, Uncategorized | Tagged , | Leave a comment

ABA Formal Opinion 496 addresses ethics issues related to lawyer responses to online criticism and provides guidance

Hello everyone and welcome to this Ethics Alert, which discusses recent American Bar Association (ABA) Formal Opinion 496, which addresses ethics issues related to lawyer responses to online criticism and provides guidance.  ABA Formal Opinion 496 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-496.pdf

As I previously blogged here: https://wordpress.com/view/jcorsmeier.wordpress.com; and here: https://jcorsmeier.wordpress.com/2020/11/04/florida-bar-ethics-committee-requests-board-of-governors-to-approve-wider-opinion-on-responding-to-online-criticism/, the Florida Bar Professional Ethics Committee issued Florida Bar Ethics Opinion 20-1, which concludes that lawyers are not permitted to reveal confidential information in responses to online criticism and the committee has requested authority to issue a wider opinion addressing the issues related to lawyers’ responses to online criticism.  Florida Bar Ethics Opinion 20-1 is here:  https://www.floridabar.org/etopinions/opinion-20-1/        

ABA Formal Opinion 496 states:

Lawyers regularly are the target of online (and offline) criticism. Clients, opposing parties, and others are increasingly taking to the internet to express their opinions of lawyers they have encountered. Lawyers are left in the quandary of determining whether and how they ethically may respond when the opinions posted are unflattering, and the facts presented are inaccurate or even completely untrue. This opinion addresses a lawyer’s ethical obligations in responding to negative online reviews.

ABA Formal Opinion 496 concludes:

The Committee concludes that, alone, a negative online review, because of its informal nature, is not a “controversy between the lawyer and the client” within the meaning of Rule 1.6(b)(5), and therefore does not allow disclosure of confidential information relating to a client’s matter.4 As stated in New York State Bar Association Ethics Opinion 1032 (2014), “[u]nflattering but less formal comments on the skills of lawyers, whether in hallway chatter, a newspaper account, or a website, are an inevitable incident of the practice of a public profession, and may even contribute to the body of knowledge available about lawyers for prospective clients seeking legal advice.”

The Committee further concludes that, even if an online posting rose to the level of a controversy between lawyer and client, a public response is not reasonably necessary or contemplated by Rule 1.6(b) in order for the lawyer to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Comment [16] to Rule 1.6 supports this reading explaining, “Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes stated.”

ABA Formal Opinion 496 sets forth best practices for lawyers in responding to online criticism, including:

  1. A lawyer may request that the host of the website or search engine remove the post.
  1. Lawyers should give serious consideration to not responding to negative online reviews in all situations.
  1. Lawyers may respond with a request to take the conversation offline and to attempt to satisfy the person, if applicable.
  1. If the poster is not a client or former client, the lawyer may respond simply by stating that the person posting is not a client or former client, as the lawyer owes no ethical duties to the person posting in that circumstance. However, a lawyer must use caution in responding to posts from nonclients.
  1. If the criticism is by a client or former client, the lawyer may, but is not required to, respond directly to the client or former client. The lawyer may wish to consult with counsel before responding. The lawyer may not respond online, however.
  1. An additional permissible response, including to a negative post by a client or former client, would be to acknowledge that the lawyer’s professional obligations do not permit the lawyer to respond. A sample response is: “Professional obligations do not allow me to respond as I would wish.”

ABA Formal Opinion 496 finally concludes:

Lawyers are frequent targets of online criticism and negative reviews. ABA Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. A negative online review, alone, does not meet the requirements for permissible disclosure under Model Rule 1.6(b)(5) and, even if it did, an online response would exceed any disclosure permitted under the Rule.

Lawyers who are the subject of online criticism may request that the website or search engine host remove the information but may not disclose information relating to any client’s representation, or information that could reasonably lead to the discovery of confidential information by others. Lawyers should consider ignoring a negative post or review because responding may draw more attention to it and invite further response from an already unhappy critic. Lawyers who choose to respond online must not disclose information that relates to a client matter or that could reasonably lead to the discovery of confidential information by others. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible response would be to indicate that professional considerations preclude a response. A lawyer may respond directly to a client or former client who has posted criticism of the lawyer online but must not disclose information relating to that client’s representation online.

Bottom line:  This ABA Formal Opinion provides guidance and best practices to lawyers regarding responses to online criticism.  The ABA opinion is consistent with other state ethics opinions, including Florida Bar Ethics Opinion 20-1.  

            Stay safe and healthy and be careful out there.

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.             

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, advice and representation of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers. 

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

Posted in ABA Formal Opinion 496 responding to online complaints and criticism, ABA Formal Opinion 496 responding to online complkaints and criticism, ABA opinions, Attorney ethics, Attorney/client confidentiality, Confidential Information, Confidentiality, Confidentiality and lawyer response to internet complaint criticism, corsmeier, Ethics Opinions, Florida Bar, Florida Bar ethics, Florida Bar Ethics Opinion 20-1 responding to online complaints and criticism, Florida Bar ethics opinion lawyer response to negative online review complaint and confidentiality, Florida Bar Rules, joe corsmeier, joseph corsmeier, Lawyer Ethics, Lawyer ethics opinions, Proposed Florida Bar ethics opinion 20-1- response to negative online reviews | Tagged , , , , , , , , | Leave a comment

ABA Formal Opinion 495 addresses ethics and UPL issues related to lawyers working remotely and provides guidance

Hello everyone and welcome to this Ethics Alert, which will discuss American Bar Association (ABA) Formal Opinion 495, which addresses ethics issues related to lawyers working remotely and provides guidance  ABA Formal Opinion 495 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-495.pdf    

The ABA opinion states that lawyers may remotely practice law in the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if that jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law, if they do not hold themselves out as being licensed to practice in that jurisdiction, do not advertise or otherwise hold themselves out as having an office in that jurisdiction, and do not provide or offer to provide legal services in that jurisdiction.   

This includes the law of the jurisdiction in which the lawyer is licensed or other law, and placing local contact information on websites, letterhead, business cards, advertising, or other locations/media would improperly establish a local office or presence under the ABA Model Rules.

Formal Opinion 495 concludes:

The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law. That purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.

The Committee’s opinion is that, in the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.

Bottom line:  This ABA Formal Opinion was published to assist lawyers in addressing ethics issues that arise when a lawyer is practicing remotely.   

This ABA opinion is consistent with Proposed Florida UPL Advisory Opinion FAO #201904, which concludes that an out-of-state licensed attorney who is working remotely on federal intellectual property rights matters (and not Florida law) from his or her Florida home for an out-of-state law firm and no public presence or profile in Florida as an attorney would not be engaging in the unlicensed practice of law.  The advisory opinion was filed with the Florida Supreme Court on August 17, 2020.  The briefing period has ended and the proposed advisory opinion is pending final Supreme Court action.  Proposed Florida UPL Advisory Opinion FAO #201904 is here: https://www-media.floridabar.org/uploads/2020/07/Complete-FAO-2019-4-Opinion-1.pdf   

            Stay safe 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Posted in ABA advisory opinion 495 lawyers practicing remotely, ABA opinions, Attorney ethics, corsmeier, ethics and UPL out of state lawyers practicing remotely, Ethics Opinions, Proposed Florida UPL Advisory Opinion FAO #201904 out-of-state lawyer practicing remotely, Uncategorized | Tagged , , , , | Leave a comment

U.S. District Court Judge enjoins Pennsylvania from enforcing Bar rule with broad lawyer anti-discrimination prohibitions

Hello everyone and welcome to this Ethics Alert, which will discuss the recent U.S. District Judge for the District of Eastern Pennsylvania’s opinion and preliminary injunction prohibiting enforcement of a disciplinary rule broadly prohibiting discrimination by lawyers as violative of the free speech component of the First Amendment of the U.S. Constitution.  The case is Greenburg v. Haggerty, U.S. District Court for the Eastern District of Pennsylvania, Case No. 20-3822.  The opinion and injunction is here:  https://www.courtlistener.com/recap/gov.uscourts.paed.574138/gov.uscourts.paed.574138.29.0.pdf  from www.courtlistener.com). 

The Pennsylvania Bar rule is a variation of an ABA Model Rule which was promulgated in 2016, and multiple states have adopted a version of the ABA rule with the broad anti-discrimination prohibitions.  Pennsylvania Rule 8.4(g) states that a lawyer is prohibited from “in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status or socioeconomic status.”

The Comment to the Pennsylvania rule states: “conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered.”

Philadelphia lawyer Zachary Greenberg filed the lawsuit and argued that the application of Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct would chill his speech as a lawyer for a foundation defending the free speech rights of students.  The lawyer stated that he mentions slurs, epithets and demeaning nicknames in presentations about the constitutional rights of people who do and say offensive things.   The lawyer stated that he also speaks at events related to his work for the Foundation for Individual Rights in Education and his membership with the First Amendment Lawyers Association.

The judge found that the lawyer had standing to sue and that the Pennsylvania rule was likely unconstitutional because it discriminated based on an individual’s viewpoint in violation of the U.S. Constitution, and he issued a preliminary injunction blocking the rule from being enforced. 

The opinion and injunction states: 

There is no doubt that the government is acting with beneficent intentions.  However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.

The irony cannot be missed that attorneys, those who are most educated and encouraged to engage in dialogues about our freedoms, are the very ones here who are forced to limit their words to those that do not “manifest bias or prejudice.” Pa.R.P.C. 8.4(g). This Rule represents the government restricting speech outside of the courtroom, outside of the context of a pending case, and even outside the much broader playing field of “administration of justice.” Even if Plaintiff makes a good faith attempt to restrict and self-censor, the Rule leaves Plaintiff with no guidance as to what is in bounds, and what is out, other than to advise Plaintiff to scour every nook and cranny of each ordinance, rule, and law in the Nation.

Bottom line:  As I indicated, other states have adopted rules which expand conduct prejudicial to the administration to include broad prohibitions of discrimination, including Florida, although Florida Bar Rule 4-8.4(d) does not have the Pennsylvania Comment regarding the scope of activities included in the practice of law. 

It will be interesting to see if the preliminary injunction is appealed and, if so, if it is upheld, and also whether other lawsuits are filed claiming that the rule is unconstitutional as violative of the First Amendment of the U.S. Constitution.

            Stay safe and healthy and be careful out there.

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.

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

Posted in Florida Bar Rule 8.4(d) conduct prejudicial to the administration of justice, joe corsmeier, joseph corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer disparagement and discrimination, lawyer disparaging other lawyers and judges in pleadings, lawyer disparaging remarks to non-client witness, Lawyer misconduct disparaging and improper comments, U.S. District Court Judge enjoins Pennsylvania from enforcing Bar rule with broad lawyer anti-discrimination prohibitions, Uncategorized | Tagged , , , | 1 Comment

New York State Bar Association ethics opinion states that lawyer can withdraw from representing client because of fear of COVID-19

Hello everyone and welcome to this Ethics Alert, which will discuss the recent New York State Bar Association (NYSBA) ethics opinion stating that a lawyer can ethically withdraw from representing a client because of the lawyer’s fear of the coronavirus.  NYSBA Ethics Opinion 1203 is here:  https://nysba.org/ethics-opinion-1203/

According to the NYSBA opinion, a New York lawyer who was representing a client in Immigration Court proceedings requested the opinion.  The lawyer was scheduled for an in-person appearance in the matter; however, the lawyer stated that no COVID-19 safety protocols or procedures to mitigate the spread of the coronavirus had been established for in-person appearances and the lawyer was concerned that appearing in-person presented a substantial health risk.

The NYSBA opinion noted that New York’s Rule 1.16(c)(9) on withdrawal is substantially difference from the ABA Model Rule.  The New York Rule permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.”

ABA Model Rule 1.16(a)(2) requires withdrawal when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”  The Model Rule does not have the New York rule’s language allowing withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively”, which is a more permissive standard.

The NYSBA opinion concluded: “An attorney may withdraw from representation, with the permission of the Immigration Court, based on fear of contracting COVID-19 as a result of in-person appearances in the proceeding, where such fear renders it difficult for the attorney to carry out the representation effectively.”

The NYSBA opinion further noted that: “If the Immigration Court grants the inquirer’s motion to withdraw, then Rule 1.16(e) will require the inquirer to ‘take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including by giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly repaying any part of a fee paid in advance that has not been earned and complying with applicable laws and rules.’”

Florida (and other jurisdictions) track the ABA Model Rule 1.16(a)(2) language and do not have the more permissive New York withdrawal language.

Bottom line: In our brave new COVID-19 world, lawyers must be aware of their obligations if they are considering withdrawal due to health concerns related to the novel coronavirus and appearances in court.  Each lawyer should review his or her jurisdiction’s rules and ethics opinions if those circumstances arise.

Stay safe and healthy 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.

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 Corsmeierabout.me/corsmeierethicsblogs
Posted in Ethics and lawyer withdrawal, Lawyer withdrawal, Lawyer withdrawal COVID-19, NYSBA ethics opinion COVID withdrawal, Uncategorized | Tagged , , | Leave a comment

Florida Bar Ethics Committee requests Board of Governors to approve wider opinion on responding to online criticism

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Ethics Committee’s (PEC) approval of revised proposed advisory opinion (PAO) 20-1 providing guidance on responding to online criticism and request that the Florida Bar’s Board of Governors (BOG) instruct it to prepare a wider opinion on the issue.  The initial PEC proposed advisory opinion PAO 20-1 is here:  https://www.floridabar.org/ethics/etprop-advisory/.    

At its meeting on October 9, 2020, the PEC approved revised proposed advisory opinion PAO 20-1 addressing lawyer responses to negative online reviews by current or former clients and requested that the BOG instruct it to take a broader look at online criticisms.  The PEC also voted to consider a potential amendment to Rule 4-1.6 and report back at its January 2020 meeting.

PAO 20-1 was prepared after a lawyer requested guidance on responding to a negative online comment posted by a former client.  The lawyer asked if a response could include truthful information, including that a judge had approved the lawyer’s withdrawal from representing the former client.

PAO 20-1 states that Florida Bar Rule 4-1.6 allows only disclosure of information without client consent in limited circumstances, including when there is a controversy with the client and the lawyer cannot reveal confidential information about the representation, even if it is in the public record.. 

The revised opinion concludes that any response to the online criticism by the former client would have to be general such as the lawyer disagrees with the comments, could not reveal confidential information without the client’s consent, and could not reveal the court’s withdrawal order unless the client had given informed consent.  T

The revised opinion also refers to a suggested general response in a Texas ethics opinion and the opinion was then revised to suggest an alternative response as follows: “As an attorney, I am constrained by the Rules Regulating The Florida Bar from responding in detail, but I will simply state that it is my belief that the (comments/post) present neither a fair nor accurate picture of what occurred and I believe that the (comments/post) (is/are) false.”

PAO 20-1 will become final unless one (or more) of three lawyers who filed comments with the PEC about the opinion appeals the proposed opinion to the Board of Governors. The lawyer’s comments objected to the opinion arguing that it hampered the ability to use truthful information in defense, did not address online comments from non-clients, and could infringe on commercial free speech protected by the First Amendment.

Bottom line: In our brave new digital world, lawyers must be aware that they cannot provide confidential information when responding to online complaints or criticism at this time.  As always, I will keep you advised regarding this issue.. 

Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Posted in Confidentiality and lawyer response to internet complaint criticism, lawyer response to internet complaint and criticism, Lawyer revealing confidential information on internet in response to complaint, Lawyer violation of confidentiality on internet, Uncategorized | Tagged , , | Leave a comment

Ohio lawyer who called magistrate’s ruling “the most absolutely insane decision” and opposing counsel a “complete idiot” suspended

Hello everyone and welcome to this Ethics Alert, which will discuss recent suspension of an Ohio lawyer who, inter alia, called a judge’s decision “the most absolutely insane decision” and opposing  counsel a “complete idiot”, was suspended for two years with the final six months conditionally stayed.  The case is Toledo Bar Association v. Yoder, Slip Opinion No. 2020-Ohio-4775 and the Ohio Supreme Court opinion is here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-4775.pdf      

The disciplinary case arose from the lawyer’s conduct in two client matters, a custody dispute and a land contract (purchase) case.

According to the opinion, in the child custody matter, the lawyer “engaged in a deliberate pattern of false and inappropriate written communications regarding four people over several years”  and called the opposing party in the custody matter a “very troubled woman” who was “obviously delusional” and “out of touch with reality”. 

The opinion states that the lawyer “declared that the magistrate’s ruling on Dowe’s September 2015 emergency custody motion ‘was the most absolutely insane decision [he had] ever encountered in almost 40 years’ and was not what ‘a normal, competent magistrate would have done.’” 

The lawyer also:

“accused the magistrate of lying about communications with a caseworker and the GAL regarding whether the children were in immediate danger at the grandparents’ home. Yoder claimed that there was absolutely no basis for removing the children from the home and that at subsequent hearings, the magistrate personally attacked him instead of admitting that his actions with regard to the emergency custody motion were ‘100% wrong.’ Based on the magistrate’s alleged lies, ‘incredible arrogance,’ ‘taunts, threats and lectures,’ and ‘vendetta’ against him, Yoder suggested that the magistrate could not be objective and opined that either he should voluntarily remove himself from the case or the affidavit of prejudice and bias should proceed to a full hearing.”

The lawyer also reported the opposing party, who was a licensed nurse, to the Ohio state nursing board and requested an investigation into her fitness without a factual basis, claiming that she might be a danger to her patients and said she had “bizarre visions of paranoia.”  In addition, the lawyer accused a magistrate who ruled against him of lying, carrying on a “vendetta” against him, and showing “incredible arrogance.”

In the land contract matter, the lawyer called the opposing lawyer a “complete idiot”, accused him of “churning” a case to increase legal fees, and stated that a letter sent by the opposing counsel was “idiotic” and “so stupid, I sent it back to you as I didn’t want it in my file.” 

The lawyer’s correspondence stated: “As I have said in the past, you are a complete idiot!  For over two (2) years, I have asked you to get some help about your misunderstanding about a vendor being able to transfer title to real estate. However you are to [sic] stupid to know how stupid you are and your [recent letters] prove that once again.” 

The lawyer also stated in his correspondence to the opposing lawyer: “[Y]our letter of January 5, 2015 was so stupid, I sent it back to you as I didn’t want it in my file,” and he closed the letter with “No more idiotic letters!!!”  The lawyer called the opposing party a “very ignorant, troubled woman,” a “liar” and “an idiot,” and said that she was represented by a “mentally ill attorney advising an idiot.”  The court had ruled for the opposing party in the underlying case.

In his response to the disciplinary complaints, the lawyer stated that the Toledo Bar Association “will sink to any depth to trump up anything against me” and that the Bar Association counsel “had absolutely no clue as to any of the facts he has alleged in his complaint. In defending the disciplinary complaints, the lawyer argued that the custody and land cases were wrongly decided, that his statements about a magistrate and the parties were true, and that those involved in those underlying cases and the disciplinary case had shown bias against him.

The opinion states: “Over the last eight years, Yoder has been unable or unwilling to address his frustrations in the underlying cases—be they adverse court rulings, perceived criticism of his own conduct, or his own perceptions that others are performing incompetently—in a concise, rational and professional manner.”  The lawyer was suspended for two years with the final six months conditionally stayed and he must submit to an evaluation by the Ohio Lawyers Assistance Program and comply with its recommendations before he can be reinstated.

Bottom line:  This somewhat bizarre case involves a lawyer showing somewhat paranoic behavior and making outrageous statements and allegations which, according to the court’s opinion, were not true.  This is another example of a lawyer apparently allowing personal feelings to overcome professionalism when representing clients. 

            Stay safe 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Posted in Uncategorized | Leave a comment

ABA Formal Opinion 494 addresses conflicts arising from a lawyer’s personal relationship with opposing counsel

Hello everyone and welcome to this Ethics Alert, which will discuss American Bar Association Formal Opinion 494 addresses conflicts arising out of a lawyer’s personal relationship with opposing counsel under ABA Rule 1.7(a)(2).  The opinion identifies three categories of personal relationships that could affect a lawyer’s representation of a client: intimate relationships, friendships, and acquaintances. ABA Formal Ethics Opinion 494 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-494.pdf    

The formal opinion states that Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer.  A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel.

According to the formal opinion, lawyers must examine the nature of the relationship to determine if it creates a conflict under the rule and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.

The formal opinion lists three categories of personal relationships that might affect a lawyer’s representation of a client: 1. intimate relationships (including cohabitation, engagement, or exclusive intimate relationship) 2. friendships, and 3. acquaintances.  

  1. Intimate relationships

The opinion notes that “changing living patterns” indicate that more people are living in the same household with “arrangements that do not correspond to traditional categories.”

“Lawyers who cohabit in an intimate relationship should be treated similarly to married couples for conflicts purposes,” according to the opinion. This includes those who are married, engaged to be married, or in “exclusive intimate relationships.” In these instances, lawyers must disclose the relationship to their respective clients and may not represent the clients unless each has given informed consent confirmed in writing.

  1. Friendships

The opinion states that friendships “may be the most difficult category to navigate.” Close friendships with opposing counsels should be disclosed to clients, according to the opinion. These include friendships in which the lawyers exchange gifts at holidays, spend time routinely at each other’s home, or vacation together with their families. 

According to the opinion, opposing counsel who were law school classmates or once practiced together and do not see each other regularly ordinarily do not have to obtain a client’s informed consent and may not have to even disclose the relationship to clients.  “In sum, opposing lawyers who are friends are not for that reason alone prohibited from representing adverse clients.”  “The analysis turns on the closeness of the friendship.”

  1. Acquaintances

The opinion describes acquaintances as those individuals who the lawyer sees the other lawyer at social or professional gatherings, such as a professional organization or a church, but do not have “a close personal bond.”  “Lawyers who are acquaintances of opposing counsel need not disclose the relationship to clients, although the lawyer may choose to do so.”

The opinion concludes that lawyers should examine the nature of the relationship to see whether it is close enough to require disclosure and client informed consent.  Further, “(d)isclosure may even be advisable to maintain good client relations.”

Bottom line:  This ABA Formal Opinion was published to assist lawyers in evaluating personal relationships with opposing counsel and determining whether the relationship may or does result in a conflict of interest.  If it does, the lawyer is required to disclose the relationship to the client and obtain informed consent in writing. 

            Stay safe 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Utah Supreme Court approves Rocket Lawyer and other entities to participate in regulatory “sandbox”

Hello everyone and welcome to this Ethics Alert, which will discuss recent approval of Rocket lawyer and other entities to participate in Utah’s pilot regulatory “sandbox program. 

On September 8, 2020, Rocket Lawyer announced that it was one of the first entities approved by the Utah Supreme Court to participate in the regulatory “sandbox” program permitting, inter alia, nontraditional legal service providers.  Rocket Lawyer’s website is here:  https://www.rocketlawyer.com/ 

As I previously blogged here: https://jcorsmeier.wordpress.com/2020/08/18/utah-supreme-court-authorizes-pilot-program-which-inter-alia-permits-non-lawyers-to-own-law-firms-and-share-fees-with-lawyers/, the Utah Supreme Court approved the regulatory “sandbox” pilot program as the primary part of a regulatory reform package which was designed to allow the testing of innovative approaches to serving legal consumers will ultimately improve the public’s access to justice.  The Court’s August 14, 2020 Standing Order is here: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2020/08/FINAL-Utah-Supreme-Court-Standing-Order-No.-15.pdf   

A total of five entities were approved for participation in the sandbox program.  The other approved applicants were:

  1. LawHQ: A Salt Lake City law firm which plans to offer equity ownership to certain software developers in the firm and a software application called CallerHQ, which is designed to allow consumers to report spam telephone calls, text messages and voicemails. Consumers who sign up may then be included in a mass tort litigation brought by LawHQ against the spammers.
  2. 1Law: An entity which plans to provide no-cost and low-cost legal services to assist clients in completing court documents and also offer related legal advice using chatbots, instant messaging, automated interviews, nonlawyer staff and technology-assisted lawyers. 1Law plans to have more than 50% nonlawyer ownership.
  3. LawPal: An entity which plans to provide a TurboTax-like technology platform to generate legal documents in contested and uncontested divorce and custody cases, eviction cases and debt-related property seizure cases. It expects to feature 50% nonlawyer ownership.
  4. Blue Bee Bankruptcy Law: The sole owner of this law firm states that he will give his paralegal employee a 10% ownership interest in the firm as an incentive to remain with the firm.

The Utah Supreme Court’s Order creating the pilot sandbox program states that participants must demonstrate that the activities and services “do not cause levels of consumer harm above threshold levels established by” the Court’s innovation office.  Successful sandbox participants may also ultimately receive approval to exit the sandbox program and continue practicing the services after the pilot program ends.

After the two-year pilot program period, which began on August 14, 2020, is over, the Utah Supreme Court will evaluate whether the program should continue “based on a review of data collected from those entities and individuals participating in the program.”  If not approved to continue, the program will sunset after the 2 year period.  

As I previously blogged, the Arizona Supreme Court recently approved rule revisions which will permit alternative legal business structures.  The Arizona rule revisions become effective January 1, 2020 and there are no provisions for a regulatory “sandbox program”.  My blog is here:  https://jcorsmeier.wordpress.com/2020/09/02/arizona-becomes-first-u-s-state-to-authorize-non-lawyer-ownership-of-law-firms-and-fee-sharing/

Bottom line:  As I have said before, if this trend continues, this could become the wave of the future in other states and jurisdictions. 

Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Posted in 2018 Utah rules permit non-lawyer limited practice, 2020 Arizona Supreme Court permits non-lawyer fee sharing and ownership of law firms, 2020 Utah pilot program permitting non-lawyer practice and law firm ownership, Arizona limited legal advice pilot program 2020-2021, Attorney ethics, Attorney Ethics sharing fees, corsmeier, joe corsmeier, joseph corsmeier, Lawyer Ethics, Lawyer sharing fees with non-lawyers, lawyers sharing fees with non-lawyers, Uncategorized, Utah sandbox approves Rocket Matter as legal service rovider | Leave a comment