Defense Lawyer’s YouTube Strategy Backfires

The Review Board of the Illinois Attorney Registration and Disciplinary Commission suspended a criminal defense lawyer, Jesse Raymond Gilsdorf, for five months after he posted a discovery video on YouTube and then linked it to his Facebook. He believed the video of the undercover drug sale would exonerate his client because it showed police planting drugs on her. However, the video, titled “Cops and Task Force Planting Drugs,” clearly showed his client purchasing drugs when viewed on a large screen. As a result, his client pled guilty and was sentenced to probation.

The Review Board affirmed all but one of the violations of Illinois’ Rules of Professional Conduct recommended by the Illinois Hearing Board against Gilsdorf. Specifically, he was disciplined for violating: Rule 1.6(a) because he revealed information relating to the representation of a client without the informed consent of his client; Rule 1.4(a)(2) because he failed to reasonably consult with his client about the means by which the client’s objectives were to be accomplished; and Rule 3.6(a) because he made extrajudicial statements that he knew or reasonably should have known would be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding.

As this case suggests, the practice of law in the social media era requires that a lawyer to exercise a greater duty of care to avoid divulging confidential information and potentially compromising his client’s case.

For further information, click here. To view the Illinois Review Board Report, click here.

Illinois’ Attorney Receives Reprimand for Breach of Client Confidentiality on Avvo

The Hearing Board of the Illinois Attorney Registration and Disciplinary Commission, pursuant to a joint stipulation of the parties, issued a reprimand to Betty Tsamis, an attorney who found herself in trouble after revealing confidential client information in response to a client posting on AVVO and for a trust fund irregularity. (click here to read our previous post on the Betty Tsamis matter). The hearing board found the mitigating factors in the case to be that Tsamis had no history of disciplinary problems, she demonstrated remorse, and had taken steps to improve her record keeping procedures. Additionally, there were several lawyers that were prepared to testify as to Ms. Tsamis’ excellent reputation for truth and veracity. Nonetheless, the Hearing Board admonished Ms. Tsamis that the reprimand was not to be taken lightly.

For more information, read Hearing Board Order here.

Online Coupon Deals: Client Magnet or Ethical Headache?

With the continued growth of social media and technology, attorneys have taken creative approaches to tap into the Internet to attract clients. Efforts have included establishing “Blawgs” in addition to simple staples like firm websites. Electronic coupon deal sites such as Groupon and LivingSocial have become a new forum that some attorneys have chosen to utilize to stimulate business. However, attorneys must tread with exceptional care through the ethical landmine involved with using such coupon sites to gain clientele. ABA Formal Opinion 465, issued on October 21, 2013, expresses that while the ABA Standing Committee on Ethics and Professional Responsibility “believes that coupon deals can be structured to comply with the Model Rules,” there are “numerous difficult issues associated with prepaid deals” and the Committee is less than certain “that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.”

The opinion indicates that although the main concern is compliance with Rule 1.5, which governs attorney’s fees, numerous other ABA Model Rules are also implicated, including Rule 1.15, proper handling of fees; Rule 1.3, diligence; Rule 1.1, competence; Rule 5.4, fee sharing; and Rules 7.1, 7.2, and 7.3, information about legal services. The opinion even states that attorneys must take into account issues that may arise due to conflicts of interest, which implicates Rules 1.7, 1.9, 1.18. Some states have also opined on the use of Groupon, including Alabama, New York, North Carolina, South Carolina, Indiana, and most recently Arizona, which came to a similar conclusion as the ABA.

 The main issues with using these coupon sites concerns the proper management of advance legal fees that can only be collected when an attorney-client relationship is formed. According to Rule 1.15, such advance fees must be identified by each purchaser’s name and deposited into a trust account; each purchaser of a coupon must provide specific information in order for attorneys to comply with this requirement. Furthermore, the opinion highlights financial risks that attorneys must take into account when legal services are not used or performed due to conflicts of interest; and in many of these situations, the opinion states that the money must be refunded in full to the purchaser, including whatever fee the coupon dealer retained from the purchase transaction. Other issues the opinion considers include compliance with advertising rules, communication of clearly defined scope of services that the attorney is offering, and the presence of disclaimers specifying that no attorney-client relationship exists until there is an actual consultation between the attorney and the purchaser.

The takeaway from the opinion is that these coupons create a whirlpool of ethical considerations. Though the benefits and potential business are very attractive, the risk of violating professional obligations is not something to be ignored.

To read the ABA article on the opinion, click here. To read prior blog-posts on how states have handled the ethical issues arising from electronic coupons, click here.[/learn_more]

 

Attorney’s AVVO Comments Give Rise to Disciplinary Complaint

Illinois employment lawyer, Betty Tsamis, is under fire for allegedly violating the Illinois Rules of Professional Conduct in her response to a former client’s negative AVVO review. According to the Illinois Attorney Registration and Disciplinary Commission, the former client accused Ms. Tsamis of accepting a $1,500.00 fee when she “knew full well” that an Illinois law would preclude the client from succeeding on his claim for unemployment benefits. AVVO removed the former client’s original post, after the former client refused to take it down at Ms. Tsamis’ request.  Within days of the removal of the original post, the former client posted a similar accusation again on AVVO.

Ms. Tsamis responded to the second post by commenting on AVVO, in part, “I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.” Because of this response to the former client–who is clearly identifiable on AVVO as his first name and last initial are listed—The disciplinary complaint alleges that Tsamis iviolated Rule 1.6(a) of the Illinois Rules of Professional Conduct by revealing information relating to her representation of the former client without the former client’s informed consent. Tsamis also faces allegations of “using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4 of the Illinois Rules of Professional Conduct” and acting in a manner prejudicial to the administration of justice.

According to the disciplinary complaint filed against Tsamis, Rinehart had sought Tsamis’ legal advice after he was fired from his job as a flight attendant for allegedly assaulting a co-worker during a flight. Tsamis claims that the client withheld facts surrounding the incident and that it was not until she reviewed his employee record that she was able to determine the weakness of his claim. Despite her advising the client that his claim was not likely to succeed, Tsamis asserts that Rinehart chose to proceed with the claim.

Attorneys representing Tsamis believe that Tsamis was justified in responding and should not be held to have violated the Illinois Rules of Professional Conduct. What do you think?

Click here to read the disciplinary complaint and here to read more about this case.

New York: Attorney Blogs and Advice to Clients on Social Media Posts

On June 5, the New York State Bar Association Committee on Professional Ethics tackled the issue of lawyer blogs and advertising in Opinion 967. The Committee opined that a lawyer’s blog is not subject to the Bar’s advertising rules when the primary purpose of the blog is not retention of the attorney. However, lawyers should beware because as the opinions explains: “The inquiry is from a ‘columnist who is also an attorney licensed in New York.’ The inquirer has become an employee of a corporation that promotes work-life balance. In that capacity the inquirer will write a blog that will be titled “The [Inquirer’s Name] Esq. Blog.” The blog will not address legal topics but will include posts about work-life balance.”

Per Virginia’s Hunter opinion, most attorney’s blog will likely be subject to the attorney advertising regulations. Click here to read more about that opinion.

On July 2, the Committee turned to the controversial issue of advising clients regarding the contents of their social media accounts in Opinion 745. In the opinion, the Committee warns lawyers not to misrepresent themselves to obtain access to social media information, discussed the role of privacy settings, and the altering of content on social media in anticipation of litigation. Notably, the opinion suggests that, in cases where removal of information from social media sites does not violate  substantive law regarding destruction or spoliation of evidence, there is no ethical bar to advising a client to “take down” content. Unfortunately, the opinion does not clarify this suggestion by providing examples nor does it comment on whether deleting social media posts on the Internet, but maintaining copies of the posts would avoid spoliation issues.

The opinion also reminds attorneys of the ethical duty to not bring or defend frivolous claims, suggesting that a lawyer may commit an ethics violation by continuing to represent a client after learning that  a client’s social media posts reveal information that negate the validity of the client’s claims.