Was That Wrong?

It’s been a while.

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s column involves a 2013 order suspending a North Carolina lawyer’s license for 5 years. I learned about it after reading on the Legal Profession Blog and in The Charlotte Observer that the lawyer has petitioned for reinstatement.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Disciplinary Commission:  We’re going to get right to the point.  It’s come to our attention that you sued Defendant on behalf of Plaintiff.  Then, without telling Plaintiff, you started representing Defendant in other, unrelated matters. And, finally, while continuing to represent both Plaintiff & Defendant, you had a sexual relationship with Defendant.
  • Lawyer:  Who said that?
  • Disciplinary Commission:  Plaintiff and Defendant.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Disciplinary Commission:  5 year suspension.
  • Lawyer:  Well you didn’t have to say it like that.

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Here are the previous entries in Was That Wrong?

costanza

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Was That Wrong? That’s what makes this so difficult.

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s story comes thanks to Joe Patrice at Above the Law: Attorney Forges Judges’ Signatures Over 100 Times.  Earns Jail, Sick Burn.  Yesterday, the attorney was sentenced to 364 days in jail, and 10 years probation, for forging judges’ signatures on 114 structured settlements and filing them with the court clerk.

As regular readers know, this is the point in the column where, using the same structure as the “was that wrong” conversation between Costanza and his boss, I’d draft an imaginary colloquy between the attorney-forger & the judge who sentenced him.

Not today.

No, today’s story reminds me more Bizarro Jerry, the episode in which Kramer is fired from a job that he doesn’t even have.  The relevant segment:

  • Leland (the boss):  Well, I’m sorry.  There’s just no way that we could keep you on.
  • Kramer:  I don’t even really work here!
  • Leland:  That’s what makes this so difficult.

The scene is HERE.  The full script is HERE.

Returning to today’s story, as Patrice wrote on the ATL blog,

  • “It remains one of the most baffling cases of professional misconduct we’ve covered at Above the Law for the simple reason that Camacho seemingly garnered no advantage at all from his actions. The settlements would’ve earned a rubber stamp had he submitted them to the court.  He just… didn’t.”

Here’s how I envision it in Bizarro world:

  • Judge:  Well, I’m sorry.  There’s just no way we can condone lawyers forging judges’ signatures on settlements.  I sentence you to 364 days in jail.
  • Lawyer:  But they’d have been approved even if I didn’t forge them!
  • Judge:  That’s what makes this so difficult.

 

Kramer

 

Was That Wrong? Tax Judge Sentenced for…..Tax Fraud

Remember when I wrote about the defense lawyer whose pants caught on fire during his closing argument in an arson case?  Well, get ready for another to which you can only say “you can’t make this stuff up”

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s version comes from us from Minnesota, the Land of 10,000 Lakes.  (Sidenote: nice basketball connection here. Not many people know why the Los Angeles Lakers are called “the Lakers.”  It’s because they used to be in Minneapolis.)

Anyhow, per Paul Caron at the TaxProf Blog, a former U.S. Tax Court judge was sentenced to 34 months in federal prison for tax fraud committed while sitting on the tax court.  The Minnesota Lawyer has additional details.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, here’s how I imagine scripting today’s entry when I adapt Was That Wrong to the screen.

  • Sentencing Court:  We’re going to get right to the point. It’s come to our attention that, over about 10 years, you and your husband fraudulently deducted approximately $500,000 of personal expenses as business expenses, fraudulently claimed around another $440,000 in deductions that, in fact, had been reimbursed, intentionally understated your income, made a series of false claims on your tax returns, and, when audited, intentionally submitted false documents to the auditors.  And, that for the entire time, you were a sitting judge on the U.S. Tax Court.
  • Defendant:  Who said that?
  • Sentencing Court:  You admitted it.
  • Defendant: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve seen a lot of cases and I tell you people do that all the time.
  • Sentencing Court:  34 months.
  • Defendant:  Well you didn’t have to say it like that.

The previous entries in Was That Wrong?

costanza

Was That Wrong? The Ethics Monster

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

The latest installment comes from the Ohio Supreme Court’s decision in Cleveland Metroplitan Bar Association v. Donchatz.  I don’t know how to categorize the misconduct as anything other than “you can’t make this stuff up.”

Here’s how I imagine I might script it if I ever write my own legal ethics knockoff of Seinfeld’s “Red Dot” episode.  By way of background, and since it’s not in the Ohio Supreme Court’s decision, the recommendation from a panel of the Ohio Board of Professional Conduct noted that the respondent used to be a disciplinary prosecutor and, when in private practice, billed himself as “The Ethics Monster.”  Recommendation, paras. 8 & 71.

  • Court:  We’ll get right to the point.  It has come to our attention that a tree company sued you for an unpaid bill.  A default judgment issued against you.  Even though you did not pay the judgment, you filed a notice of satisfaction of judgment.  Then, you did not withdraw the notice when asked to do so.
  • Lawyer:  Who said that?
  • Court:  Sorry, there’s more.  It’s also come to our attention that you sued a former client for unpaid legal fees.  A mediation session did not resolve the dispute. Nonetheless, you filed a “stipulated entry & consent judgment.”  The court approved it and entered judgment in your favor. Counsel for your former client reminded you that no agreement had been reached and asked you to withdraw the stipulated entry of judgment. You did not, and informed counsel that it would constitute (1) defamation for counsel to file an ethics complaint against you, and (2) a fraud upon the court for counsel to ask the court to vacate the judgment.
  • Lawyer:  Again, who said that?
  • Court:   The person who holds a job just like one that you used to have.
  • Lawyer:  Was that wrong?  I tell you, I gotta plead ignorance on this thing because if anyone had said anything to me at all when I was first licensed . . .
  • Court:  Suspended indefinitely.
  • Lawyer:  Well, you didn’t have to say it like that.

costanza

I think this gives new meaning to the term “Ethics Monster.”

 

Was that Wrong?

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s version of a lawyer channeling Costanza comes to us from the Northern District of Illinois.  As reported by the ABA Journal, the lawyer’s disrespectful & unprofessional conduct resulted in the court’s Executive Committee suspending her from the court’s general bar for 90 days and from its trial bar for 1 year.  The order is here.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, here’s how I imagine scripting today’s entry when I adapt Was That Wrong to the screen.

  • Executive Committee:  It has come to our attention that you were continuously disruptive during a two-week trial, and that you often reacted to unfavorable testimony by rolling your eyes, shaking your head, and commenting on it in the presence of the jury.  We also understand that, after the court overruled an objection that you made, you rolled your eyes and said, ‘Fucking bullshit.’ ” Is that correct?
  • Lawyer: Who said that?
  • Executive Committee: The judge. And it’s in the transcript.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started appearing in federal court that that sort of thing was frowned upon, you know, cause I’ve had a lot of cases and I tell you . . . umm. . . .
  • Executive Committee: Suspended!
  • Lawyer: Well, you didn’t have to say it like that.

As an aside, a nugget buried in the order made me spit out my coffee and I wasn’t even drinking any when I read it.  On page 2, the Executive Committee noted that:

  • “In mitigation, [the lawyer] has apologized and set forth a detailed plan to prevent a recurrence of the violation.”

What, exactly, is a “detailed plan” not to swear at the judge when your objections are overruled?

Honestly, I think that even Bart Simpson knows the plan:

bart-simpson-generator

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Here are the prior entries in Was That Wrong?

costanza

 

Was That Wrong? Judicial Conduct Edition

Last June, I used this question at a training I did for the Defender General:

  • On May 23, a Nevada judge presiding over a contested sentencing hearing made the news by:
    • A. Ordering the defense attorney handcuffed to the jury  box.
    • B. Holding a defense attorney in contempt for tweeting updates during the hearing.
    • C. Vacating the conviction & confessing to the crime.
    • D. Sending a Facebook ‘friend request” to the defendant during the hearing.

As you think about your answer, I’ll take a moment to explain Was That Wrong? to new readers.

Was That Wrong is a column in which I attempt to use satire to write about conduct that, hopefully, lawyers don’t need a CLE or confidential inquiry of bar counsel to know to avoid. An episode of Seinfeld served as the column’s inspiration.  The entries so far:

Ok. Ready for the answer?  As first reported by the Las Vegas Review-Journal, a Nevada judge presiding over a contested sentencing hearing made the news by ordering the defense attorney handcuffed to the jury box .  The transcript of the incident is here.

Now for the fallout: per the ABA Journal, last week, the judge was publicly censured and banned from the bench.  Here’s how I imagine it on Seinfeld:

  • Judicial Commission: We’re going to get right to the point. It has come to our attention that you ordered a defense attorney handcuffed to the jury box during her client’s sentencing hearing. Is that correct?
  • Judge: Who said that?
  • Judicial Commission: She did.
  • Judge: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve held defendants in contempt and, well, this lawyer kept interrupting me.
  • Judicial Commission: You’re censured. And you can never be a judge again.
  • Judge: Well I’d already lost my re-election so you didn’t have to say it like that.

As always, be careful out there folks.

costanza

Was That Wrong?

It’s been awhile since I’ve posted a Was That Wrong column.  In a way, that’s good.  Yet, lawyers never fail to entertain disappoint.  So, we have another entry.

For those of you unfamiliar with Was That Wrong, it’s based on the “Red Dot” episode of Seinfeld.  In the episode, George Costanza had sex in his office with a character known only as “the cleaning woman.”  His boss found out.  Here’s their ensuing exchange :

(Scene) In the boss’s office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Costanza’s response served as my inspiration for the Was That Wrong column.  The column takes a break from my regular posts.  It features stories of the absurd & outrageous from the world of legal ethics and attorney discipline, highlighting misconduct that I hope you’ll instinctively avoid without needing a CLE that urges you to do so.

Today’s entry comes from Michigan.  Here’s how I picture it going down if it were a Seinfeld episode:

  • Hearing Panel:  We’ll get right to the point.  It has come to our attention that, despite what your resume and websites say:
    • you were never licensed to practice law in either Connecticut or Missouri;
    • you were never a summer associate in 2003 at law firms in Connecticut, Missouri, and Michigan.
    • you were never awarded a Master of Liberal Arts from Harvard University;
    • you were never a member of the 1996 U.S. Field Hockey Squad; or
    • you never competed in the 1996 Olympics in Atlanta, Georgia
  • Lawyer:  Says who?
  • Hearing Panel Well, were you?
  • Lawyer:  Was that wrong? See, here’s the thing…..
  • Hearing Panel:  Disbarred.
  • Lawyer:  Well, you didn’t have to say it like that.

The order disbarring the attorney is HERE.

I’m not sure I can pick a favorite part of this case.  It might be when a member of the hearing panel asked the lawyer where he lived and, after a convoluted response, had to say “See, it’s not a trick question.  Where do you live now?”

In the end, Michigan’s Attorney Discipline Board stated that it agreed with a statement made by the hearing panel chair at the sanctions hearing. The statement is below, with the emphasis mine.

  • “I’ve been practicing for 62 years, I’m proud of my profession. I take this panel obligation very seriously and have for a good number of years. And I don’t want dishonest, deceitful,lying, conniving lawyers in my profession. I’ll tell you that right out. And you haven’t really – you haven’t really given me anything – any reasons why I shouldn’t put you in that category of a dishonest, deceitful, conniving. . .. Very frankly, I’m annoyed at your lack of response. I’m annoyed at the fact that you really didn’t acknowledge what you’ve done. You’ve misrepresented yourself all over the place. I don’t know why you think you can get away with this kind of conduct …. And I’m going to tell you something else while I’m telling you, you have seven years of college. You’re supposed to have some brains. You have the privilege of a law license from the state of Michigan. You have the privilege of belonging to one of the oldest professions. Okay? And you – from what I’ve seen, you don’t appreciate that. You haven’t given that the kind of appreciation and concern that I think it deserves.”

The Legal Profession Blog has the full story here.

costanza

Was that Wrong?

I’ve mentioned Casey Anthony on occasion in a question 5 of a Five For Friday quiz, as well as at a few county bar ethics trivia contests. She has ties to the latest installment of Was That Wrong?

costanza

For those of you not familiar with the column, in the famous “Red Dot” episode of Seinfeld, George Costanza had sex in his office with a character known only as “the cleaning woman.”  His boss found out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ingnorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Costanza’s response served as my inspiration for a semi-regular Was That Wrong? column on the blog.  The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline, highlighting misconduct that I hope you’ll instinctively avoid without needing a CLE that urges you to do so.  To date, I’ve covered conspiring with police to set up opposing counsel for DUI and bringing a gun to your disciplinary hearing, and sexting a client.

In April 2010, Todd Macaluso filed a motion to withdraw from Casey Anthony’s defense team.  Per the State Bar of California’s records, Macaluso was ordered to inactive status on April 26, 2010.  In October 2015 he was placed on an interim suspension as a result of a conviction.  He was disbarred in November 2016. This press release outlines the plea deal that resulted Macaluso’s conviction.

This isn’t how it happened, but in my imaginary, Seinfeld-inspired tv show that focuses on the wild world of attorney discipline:

  • State Bar: We’re going to get right to the point. It has come to our attention that you entered into funding agreements that put your clients’ personal injury cases up as collateral without their knowledge or consent. And, also, that you defrauded investors by using forged documents to convince them to advance millions of dollars.
  • Attorney: Who said that?
  • State Bar:  The U.S. Attorney told us you pled guilty to the charges.
  • Attorney: Was that wrong? Should I have not done that?
  • State Bar: Disbarred.
  • Attorney: Well you didn’t have to say it like that.

Interestingly, at least from the point of view as a blogger, the story doesn’t end there.  As Paul Harvey would say, and now, the rest of the story . . .

. . . Macaluso was back in the news in this week.  He’s alleged to have plotted to smuggle 1500 kilograms of cocaine into the country.

 

Negative Online Review? Update!

A few days ago, I posted Negative Review? What NOT to do.   The post focused on schemes to sue stooge defendants in order to obtain court orders that require negative online reviews to be scrubbed.

Well, here’s another example of what not to do in response to a negative online review.  As a bonus, it includes a tip on what not to do in response to a disciplinary investigation.

Lance Eldon Isaac is an attorney in Colorado. In 2013, T.S. retained Isaac in a criminal matter.  T.S. was not satisfied with the representation and posted a negative review on Avvo.Com. He also created a website to express his dissatisfaction with Isaac.  The negative review found its way to Google Plus, ripoffreport.com, and other websites.

Shortly after T.S.’s posts, another former client of Isaac’s, D, posted a negative online review.  It also found its way to Google Plus.

In 2014, Isaac hired a search engine optimization consultant.  The consultant found the reviews and recommended that Isaac respond.  He did.

In response to T.S., Isaac posted:

  • ‘[T.S.] actually retained me twice, on the same case, in which he was charged
    with felony theft. He had been referred, to me, by a colleague, who is a
    former judge, deputy district attorney, mediator and private practitioner.
    After terminating my services, the first time, because I was unable to force the
    prosecutor to do his bidding, he came to realize that no lawyer has a magic
    wand, and rehired me on the case. As he had, before my first withdrawal,
    [T.S.] became nothing but abusive, demanding, insulting and offensive, and I
    decided to terminate my representation, as the result of his conduct. In order
    to earn my $3,500.00 disposition fee, I telephoned the district attorney, on
    numerous occasions but, as i s common, among many prosecutors, the
    deputies never actually answered my call, and almost never returned it. It was

    necessary to travel outside the Denver metropolitan area, multiple times, for
    hearings and other court proceedings. I litigated the motion that [T.S.]
    insisted that I file, i.e. to dismiss, for destruction of evidence, and
    prosecutorial misconduct. He was not even able to substantiate the alleged
    facts that he presented to me, in my struggle to prevail, upon the motion. As
    with all ethical lawyers, it is inherently inimical, to me, to engage in conduct so
    base as calling either my clients, or their spouses, ‘names.’ As for the practice
    of losing one’s temper, I commend the reader to [T.S.’s] own “review,” which
    constitutes nothing but defamation.”

People v. Isaac,  pp. 3-4.

In response to D, Isaac posted:

  • “I never appeared late, for any court appearance, on behalf of [D.], and was always fully prepared, to conduct the business at hand. Logic and common sense dictate that, if I were to attempt to leave a hearing before the court had concluded it, the judge would, as it were, ‘have my head.’ No such thing occurred. Likewise, it is nonsensical that a lawyer would refuse to use relevant  evidence helpful to his client, especially if it is ‘handed to him.’ [D.] cannot corroborate anything that she claims, because it did not happen. For all of the many hours that I spent, in vigorous defense of her, against felony assault,felony eluding of police, and driving under the influence of alcohol, [D.] paid me, with a $4,000.00 insufficient-funds check. She then committed two criminal offenses, by fabricating ‘affidavits,’ which were, purportedly, executed by former (and current) relatives, forging their signatures to them, then ‘notarizing’ the forged signatures, when she was no longer
    commissioned, as a notary public. [D.’s] dishonest, fraudulent and criminal
    conduct speak for themselves”

People v. Isaac, p. 4.

Isaac’s testimony at the disciplinary hearing did not help his cause.  From page 8 of the decision, with “People” referring to the disciplinary prosecutor’s office:

  • “Though Respondent acknowledged he had  violated Colo. RPC 1.6, he also inveighed against T.S. and D., as well as the People, as ‘responsible for bringing me to
    where I am today.’ As regards his former clients, he remarked, ‘the universe brings these people to me. This isn’t my first rodeo when it comes to sociopaths and psychopaths. I’ve represented several of them in my career.’ Concerning
    the People, he expressed outrage that they had initiated the investigation after going onto the web and finding his posts. He ruminated that it was ‘not just unseemly’ that the People had done so, but in fact ‘very reminiscent of Stalinist Russia, it’s reminiscent of Nazi Germany. It’s where we go out looking: where can we find a Jew? where can we find a homosexual? where can we find somebody to do something to?’ He also complained that ‘as a result of what has happened on the internet my business has plummeted. Once people start putting this kind of stuff out there about you it can end the whole game, and that’s basically what’s happened to me,’ he said.”

A hearing board concluded that Isaac’s responses to the negative online reviews violated Rule 1.6 by improperly disclosing information relating to his representation of T.S. and D. The board rejected Isaac’s argument that the “self-defense” exception in Colorado’s version of V.R.Pr.C. 1.6(c)(3) allowed him to respond to the negative reviews. The board suspended his law license for 6 months.

H/T and thank you Samson Habte at Bloomberg ABA/BNA Lawyers Manual of Professional Conduct for blogging about this.

 

 

 

Negative Review? What NOT to do.

As online reviews of services increase, more & more service providers are grappling with how to respond to negative reviews.  Lawyers are no different.

I’ve blogged and taught on Online Reputation Management.  The general rule for lawyers is that it is okay to respond to a negative review, so long as the response does not disclose information relating to the representation.  The fact that the client posted the review does not invoke the “self-defense” exception in Rule 1.6(c)(3).

I’ve included a digest of cases and advisory ethics opinions at the end of this post. For now, here’s an example of what not to do in response to a negative online review.

Many companies will not scrub (“take down”) a negative online review absent a court order. So, if Customer posts a negative online review about Restaurant on Yelp, Yelp might not take it down unless Restaurant secures a court order directing Yelp to do so.  Seems simple so far, right?

Well, here’s what’s happening: plaintiffs are suing “stooge defendants” to obtain fraudulent orders.  What’s that mean? It means this: Mike Kennedy posts a negative online review about Lawyer on Site.  Lawyer files suit against Mike Kennedy asking for an order directing removal of the post (or hires a reputation management company that offers “lawsuit removal services.”)  Then, Lawyer finds someone who pretends to be Mike Kennedy, accepts service, and stipulates to the judgment.  Lawyer delivers the order to Site, and Site removes the post.

It seems this has come to light as a result of the fact that most sites notify the real reviewer that his or her post is being scrubbed in response to the court order.  The real reviewer’s response: “what court order? I haven’t heard anything about that.” For more on the scheme, go HERE.

Anyhow, for you lawyers, if someone posts a negative online review about you, don’t respond by filing a lawsuit against a stooge defendant.  Don’t do it for clients who are the subject of negative reviews either.

Frankly, I think any lawyer who knowingly files lawsuits of this type effectively applies for induction into the Was That Wrong Hall of Fame. 

stooges

DIGEST

Disciplinary Cases

In re the Matter of David J. Steele, Ind. Supreme Court No. 49S00-1509-DI-527 (Ind. 2015) (among other violations, Indiana lawyer disbarred for, by his own description, “actively manipulate[ing his] Avvo reviews by monetarily incentivizing positive reviews, and punishing clients who wr[o]te negative reviews by publicly exposing confidential information about them.” Responses to the negative reviews included numerous false statements)

• People v. James C. Underhill Jr., 2015 WL 4944102 (Colo. 2015) (Colorado lawyer suspended for 18 months for, among other violations, disclosing confidential information in response to internet complaints about his fees and services)

• In the Matter of Tsamis, Ill. Att’y Registration and Disciplinary Comm’n, Comm’n No. 2013PR00095 (Ill. 2014) (Chicago lawyer reprimanded for revealing confidential information when responding to a negative review on the legal information website Avvo)

• In the Matter of Margrett A. Skinner, 295 Ga. 217, 758 S.E.2d 788 (Ga. 2014) (Georgia lawyer publicly reprimanded for improper disclosures in response to negative online review)

• In re Petition for Disciplinary Action Against Allison Wiles Maxim Carlson, Supreme Court A13-1091 (Minn. 2013) (Minnesota lawyer reprimanded for falsely posing as a former client of opposing counsel and posting a negative review about opposing counsel on a website. See also Petition for Disciplinary Action)

• In re Quillian, 20 DB Rptr 288 (Or. 2006) (Oregon lawyer suspended for 90 days for publishing confidential information about former client in listserv post)

Ethics Opinions

• Wash. St. B. Ass’n, Advisory Op. 2014-02 (2014) (lawyer who claims information on a website listing becomes responsible for ensuring that info in the list conforms to the RPC; lawyer must delete false or misleading comments or endorsements attached to lawyer’s profile; and lawyer may endorse another lawyer only if the endorsement is accurate)

• B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)

• Pa. B. Ass’n, Formal Op. 2014-200 (2014) (lawyer’s response to negative online must be proportional & constrained, and  must not reveal confidential information absent client consent. Negative review doesn’t trigger self-defense exception in Rule 1.6)

• N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)

  • New Hampshire Bar Association Ethics Committee, NH Bar News, February 2014 (Lawyer may make limited response, but not so detailed as to divulge confidential information).

• Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

• S.C. B, Ethics Advisory Op. 09-10 (2010) (once lawyer claims website listing, information contained therein are subject to rules governing communication and advertising; lawyer may invite peer reviews and comments but such comments are governed by the RPC and the lawyer is responsible for the content)

Other Sources

• Joseph A. Corsmeier, Colorado Lawyer Suspended for 18 Months for Disclosing Confidential Information in Response to Client Internet Criticism, LAWYER ETHICS ALERT BLOGS (Aug. 28, 2015 4:02 PM), https://jcorsmeier.wordpress.com/category/lawyer-revealing-client-confidential-information-on-internet/

• Cassandra Burke Robertson, Online Reputation Management in Attorney Regulation, Social Science Research Network (May 1, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611326## (forthcoming in the Georgetown J. of Legal Ethics)