Hello and welcome to this Ethics Alert blog which will discuss the disciplinary case against a Missouri lawyer who is alleged to have used a payroll document and direct examination questions of opposing counsel which were obtained by the client/ex-husband by hacking the wife’s e-mail account. The disciplinary counsel’s brief is here: Disciplinary Counsel Brief.
According to the brief, the lawyer’s client (the husband in a divorce proceeding) provided the lawyer with two documents that the client had obtained by hacking the wife’s e-mail account. The documents included a payroll document showing the wife’s recent salary and distribution document and a list of direct examination questions prepared by the wife’s attorney for the divorce trial. The lawyer allegedly used the payroll document information during a settlement conference in July 2013 without disclosing that he had possession of it.
On February 11, 2014, the second day of trial, the list of the direct examination questions was included in a stack of exhibits provided by the lawyer in the courtroom and opposing counsel learned that the lawyer had the document for the first time. When opposing counsel asked the lawyer why he had possession the list, he replied (apparently flippantly) that it contained a lot of leading questions and he planned to object to them. The lawyer later stated that his paralegal had included the questions in the stack of exhibits and that he was joking when he made the remark about the leading questions.
In a conference held in the judge’s chambers the same day, the lawyer initially said that he had not seen the list of direct examination questions before that day; however, he later admitted he had seen the list of questions but claimed that he did not read the document. The lawyer’s client admitted under oath that he had obtained the documents by accessing his wife’s personal e-mail account without her permission and that he had provided the documents to the lawyer.
According to the brief: “When questioned about his statement under oath on February 11, 2014, ‘that at some point in time [he] had read the first portion of that and realized that it was verboten, it was something that [he] should not have,’ Respondent testified that when he said ‘at some point in time’ he meant ‘that day’ in court when Jones confronted him with the list.”
The brief outlines the lawyer’s prior disciplinary record, which includes:
March 9, 1991 admonishment for communicating ex parte with the judge on two occasions during the pendency of a lawsuit in violation of Rule 4-3.5(b).
June 17, 1997 suspension with leave to apply for reinstatement not sooner than six (6) months as a result of a guilty plea in the U.S. District Court for the Eastern District of Missouri to the misdemeanor of willfully failing to submit an Income Tax Return.
November 2, 1999 admonishment for communicating ex parte with the judge during the pendency of a lawsuit in violation of Rule 4-3.5(b.
January 18, 2001 admonishment for failing to respond to the OCDC on three occasions for requests for information regarding an ethics complaint in violation of Rule 4-8.1(b).
July 6, 2004 admonishment for a Rule 4-3.3(d) violation for “failing to inform the tribunal in an ex parte proceeding of all material facts known to the lawyer enabling the tribunal to make an informed decision, whether or not the facts are adverse. Specifically: ‘When asked by Judge Dildine of Lincoln County what the exigent circumstances were that required his signature on a consent order presented by Respondent, Respondent replied that it was necessary to get the minor child at issue on a health insurance policy. The statement to the Court was inconsistent with Respondent’s testimony before the Division IV Committee wherein he stated that obtaining the judge’s signature on the order was necessary in order that Respondent’s clients regain custody of the minor child from parties whom his clients considered inappropriate.’”
The brief also alleges that the lawyer threatened opposing counsel regarding her “gossip” about the matter. The disciplinary counsel’s brief seeks an indefinite suspension with no leave to apply for reinstatement until after 12 months. The Missouri Supreme Court is scheduled to hear oral arguments on the case this month.
Bottom line: If the facts in the brief are true, this is a rather egregious case of a lawyer acting unethically. The lawyer was (or should have been) aware that the documents were obtained by the client improperly and without the wife’s permission and, compounding the misconduct, the lawyer failed to advise opposing counsel that he had received the improperly obtained privileged and confidential documents (as is required in most, if not all jurisdictions). The lawyer also used the payroll document against the wife in a mediation and may have arguably been planning to use the direct examination questions without opposing counsel’s knowledge until the paralegal included the document with the copies of exhibits apparently by mistake.
Be careful out there and don’t do this (if it is true)!
Disclaimer: this e-mail is not an advertisement and does not contain any legal advice 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.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670