Hello and welcome to this Ethics Alert update blog which will discuss the disciplinary case against a Missouri lawyer who failed to disclose payroll document and direct examination questions of opposing counsel which were obtained by his client/husband by hacking the wife’s e-mail account, used them at a settlement conference, and planned to use them at a trial+. The disciplinary case is In Re: Joel B. Eisenstein, No. SC95331 (Missouri SC 4/5/16) and the opinion is here: https://www.courts.mo.gov/file.jsp?id=99378. My previous blog on this case is here: https://jcorsmeier.wordpress.com/2016/02/11/missouri-lawyer-alleged-to-have-used-payroll-document-and-opposing-counsels-written-direct-exam-questions-from-e-mails-hacked-by-client/.
According to the disciplinary opinion, the lawyer was representing the husband in a dissolution matter. The husband hacked the wife’s e-mail account and obtained her payroll documents and a list of direct examination questions prepared by the wife’s lawyer for the upcoming trial. The husband gave the lawyer the payroll document in November 2013 and he used the payroll information in the document during a mediation/settlement conference before the trial.
During the trial, the lawyer provided documents to the opposing counsel which included a list of the direct examination questions which the opposing counsel had prepared and sent to her client via e-mail. The opposing counsel asked the lawyer why he had the list of questions and he told her that there were some leading questions and he planned to object to them.
During a hearing that followed on the issue, the lawyer stated that his paralegal had erroneously included the questions in the stack of exhibits and claimed that he was joking when he made the remark about the leading questions to opposing counsel. He admitted that he had received the documents from his client and failed to disclose them to opposing counsel. The lawyer later sent opposing counsel an e-mail stating: “Rumor has it that you are quite the ‘gossip’ regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel’”.
According to the opinion, the lawyer violated Missouri Bar rules by failing to promptly disclose to opposing counsel that he had received the information/documents from his client and by sending the threatening e-mail to opposing counsel, which was prejudicial to the administration of justice. According to media reports, the lawyer is 70 years old, and the opinion set out the lawyer’s prior disciplinary record:
Mr. Eisenstein’s license has been disciplined on five prior occasions. In 1991 and again in 1999, Mr. Eisenstein was admonished for violating Rule 4-3.5(b) by engaging in ex parte communications with the judge. In 1997, this Court suspended Mr. Eisenstein after he pleaded guilty to a federal misdemeanor for willfully failing to file an income tax return. In 2001, Mr. Eisenstein was admonished for violating Rule 4-8.1(b) by failing to respond to the OCDC’s request for information regarding an ethics complaint. Finally, in 2004, Mr. Eisenstein was admonished for violating Rule 4-3.3(d) for failing to inform the court of material facts relevant to a pending issue.
The opinion of the majority suspended the lawyer indefinitely and for a minimum of 6 months with reinstatement conditioned upon the lawyer meeting the requirements for readmission. Two justices dissented and said that the lawyer should be suspended indefinitely and for a minimum of 12 months. The dissenting opinion stated it was inappropriate for the lawyer to solicit the bar and judiciary to influence the state supreme court in the case and “(o)ne of these solicitations took the form of an e-mail titled ‘I’m too old for this xxxx!!’ (Expletive deleted.)” The e-mail from the lawyer included what he claimed was a “complete history” of the case which the dissent stated “varies greatly from the facts” found by the disciplinary hearing panel.
Bottom line: As I stated in my earlier blog, this was very serious misconduct and the opinion makes it clear that the lawyer knew that the documents were obtained without the wife’s permission and did not advise opposing counsel. Compounding the misconduct, the lawyer used the improperly obtained payroll document to his advantage at a mediation/settlement conference and may also have been planning to use the direct examination questions to his advantage without opposing counsel’s knowledge until the paralegal included the document with the copies of exhibits by mistake. The lawyer also sent an e-mail threatening the opposing attorney if she pursued the matter and tried to improperly influence the court. The sanction may have been more severe in a different jurisdiction.
Be careful out there…and of course, do not do this.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
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