Some of the best of the recent blogs dealing with personal injury law (that I found):

• On the subject of punitive damages in Philip Morris v. Williams:
• Williams v. PM and the Passing of Punitive Damages Class Actions (Drug & Device Law)
• The End of Punitive Damage Class Actions? (TortsProf)
• Will these be claims of the future? Does Mild Traumatic Brain Injury Increase Alzheimer's Risk? (Traumatic Brain Injury)
• Allstate and State Farm continue to get shredded in the press: CNN Story On Hardball Auto Insurance Tactics (P.I.S.S.D.)
• Having trouble getting your message across the the jury? This might be a reason why: Context Is All: Tapping, Teletubbies, and The Curse of Knowledge (Deliberations)
• The answers depend on the questions you asked: Not the Answer You Want? Take Care in Phrasing the Question (The Illinois Trial Practice Weblog)
• Every profession has someone that says dumb things, and ours is no different: Plaintiffs' Lawyer Creates Buzz Over Venue-Shopping (WSJ Law blog)
• The Staten Island Ferry disaster has a judge holding NYC to its own standards of safety: You can't be too careful (Overlawyered)
• The ongoing Vioxx saga of trials: Vioxx Update: An Opening & A Closing (WSJ law blog)
• Will trial lawyers "make out like bandits" if SCOTUS allows suit in Scott v. Harris to go forward? The Great Escape (They think so at Overlawyered, but a certain commenter thinks otherwise)
• Yes, there is also Parts 1-5 if you follow the link: Tort "Reform" Hypocrites Vol. 6 (Tort Deform)
  
• And something a bit more important than all of the above: New Addition to the Swanner Family (South Carolina Trial Law Blog)
  

If you wrote it well and are proud of it, send it on to me at Blog[at]TurkewitzLaw.com for future editions.

Labels: Personal Injury Law Round-Up

From New York defense attorney Scott Greenfield entitled Simple Justice. (Mug shot at right.)

If you get arrested for drug dealing or murder (It was an accident!), he's the guy to turn to.

And he's a helluva writer.

Labels: Blogging, Odds and Ends

A New York appellate court has ruled that a seven year old girl can sue for injuries she received in utero, before the point she was viable outside the womb.

In Leighton v. City of New York, the school teacher mother was four months pregnant when she allegedly fell as a result of a defective toilet seat. Five minutes after her fall, she felt cramping in her lower abdomen and was taken to Methodist Hospital where she was treated and released. Thereafter the child was born three months prematurely.

The City of New York had argued that the child had no cause of action on the ground that "at the time of the alleged breach of duty [she] was a non-viable fetus," and therefore, the City did not owe her a duty of care.

As New York's highest court has not ruled on the subject, the appellate court turned to other precedent. The court noted the Restatement of Torts:

...which states that "[o]ne who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive." This principle is "not limited to unborn children who are viable' at the time of original injury, that is, capable of independent life . . . [i]f the tortious conduct and the legal causation of the harm can be satisfactorily established" (id. § 869, Comment 1[d]).

The court also went on to distinguish abortion cases, noting:

Abortion cases are generally distinguishable from the instant case, since fetuses which are aborted are not born alive (see generally Group Health Assn. v Blumenthal, 295 Md 104, 453 A2d 1198). However, if the abortion fails and causes injury to the fetus who is later born alive, the child may have a cause of action sounding in medical malpractice to recover damages for the injuries sustained (see Sheppard-Mobley v King, 4 NY3d 627).

Justice Gloria Goldstein wrote for a unanimous four judge panel of the Second Department.

Labels: Personal Injury

As the Scooter Libby jury deliberates, now with the loss of one very independent minded juror who refused to wear a Valentine's Day shirt, my thoughts turn to jury nullification and the comments of one New York jurist (and a new blog on the subject):

Many years ago, I tried a difficult medical malpractice case before Justice Stanley Sklar in New York. When Justice Sklar discharged the jury (we settled during deliberations) he told a story that I remember today:

In the 1600s William Penn was arrested for an "illegal" speech. The jury acquitted Penn, which enraged the colonial judge. So the judge imprisoned the jury for a few days to help "persuade" them to reach a verdict more to his liking. The jury refused and their imprisonment was subsequently overturned. Thus, the power of the jury was established, free of the opinions of the judge.

Juries are supposed to be finders of fact, and apply those facts to the law as given by the judge. But sometimes juries don't like the law and do what they want. While in civil cases a jury verdict can sometimes be reversed, in criminal cases a defense verdict ends the case for all time. A few quotes to ponder:

The jury has the power to bring a verdict in the teeth of both law and fact. -- Oliver Wendell Holmes, United States Supreme Court Justice

The jury has a right to judge both the law as well as the facts in controversy. -- John Jay, 1st Chief Justice of the Supreme Court

The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge -- U.S. vs. Dougherty, 1972

It would be an absurdity for jurors to be required to accept the judge's view of the law, against their own opinion, judgment, and conscience. -- John Adams

For more on jury nullification, I found a brand new blog on juries from trial lawyer and jury consultant Anne Reed and her blog entry: The Rare Ruby-Throated Jury Nullification

Labels: Inside The Jury Room, Interesting Cases in the News

On Friday I wrote about the death of the 9-1 punitive damage ratio that defendants like to claim exists, in: Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs. I focused on the Stevens dissent and also discussed Breyer's commentary at oral argument.

Today, Anthony Sebok at FindLaw takes a more in-depth look on the same subject with:
The Supreme Court's Decision to Overturn a $79.5 Punitive Damages Verdict Against Philip Morris:
A Big Win, But One With Implications That May Trouble Corporate America

Labels: Punitive Damages

In this personal injury case arising from a car accident, the driver apparently took a turn on a wet road at about 35 - 40 mph and hit a dumpster, of the type seen at right. The accident occurred in a "dimly lit" area that was "in a part of the street that cars would normally drive on." While there was little doubt the driver was negligent, issues arose in this suit by a passenger as to the company that placed the dumpster:

• Was the dumpster in the roadway?
• Is there any liability due to the dumpster not having reflectors?

A divided panel of the Appellate Division, First Department held in Smalls v. AJI Industries that summary judgment should have been granted to the dumpster owner. In doing so, they seemed to be resolving issues of fact that properly belong to a jury. The dissent from Justice Tom has, in my opinion, the more persuasive argument:

Resolving several issues of fact as a matter of law, the majority concludes that because the driver was negligent in the operation of the motor vehicle, other defendants cannot be held accountable regardless of the location and condition of the dumpster. Because the record contains evidence that the dumpster was located "in a part of the street that cars would normally drive on," and was unseen until virtually the moment of impact, a trier of fact could reasonably conclude that the owners of the refuse container were negligent in placing it in an unsafe location and failing to equip it with reflective tape or other markings to render it discernable to motorists. Thus, the question of defendants' relative culpability in contributing to plaintiff's injuries is properly reserved for trial.

Questions of fact need to be left for juries. Here, simply because one defendant had clear liability (speeding, losing control of his car), the court has taken the issue of liability away from someone else who may also share in the fault.

Labels: Car Accidents, Personal Injury

From an AP story today...

(AP) A federal judge on Monday denied the city's request to limit the amount of damages from the Staten Island ferry crash that killed 11 people and injured dozens in one of the worst mass-transit disasters in city history.

The city had sought to cap civil claims to a total of $14.4 million -- the value of the vessel Andrew J. Barberi -- citing a 19th century maritime statute. Scores of plaintiffs have sued the city for damages that lawyers say could reach billions of dollars.

The Barberi slammed into a concrete pier on Oct. 15, 2003 after pilot Richard Smith, suffering from extreme fatigue and on painkillers, passed out at the helm. In a guilty plea in 2005, ferry director Patrick Ryan, the top-ranking city official charged in crash, admitted he failed to implement or enforce a rule requiring two pilots during docking.

So why did the judge refuse the city's request? According to U.S. Eastern District Judge Edward Korman sitting in Brooklyn:

The city's failure to provide a second pilot or otherwise adopt a reasonable practice that addresses the issue of pilot incapacitation was plainly a substantial factor in causing the disaster...Because this negligence is directly attributable to its director of ferry operations, the city cannot limit its liability to the value of the Barberi. (page 21 of decision)

The decision can be found here.

Labels: Interesting Cases in the News, Personal Injury

Speculating on jurors is a full time job for trial lawyers, regardless of whether the matter is personal injury or criminal law. Today is no different as a juror is excused in the Scooter Libby trial during deliberations.

Why is this particular juror important? Well, on Valentine's Day, she was the only juror not to be wearing a red shirt with a heart on, an odd event that I noted previously in Scooter Libby's Jury and The Valentine's Day Shirts.

Thus, the speculation would be that a stubborn juror (she refused to go along with the others in a "fun" thing) has now left. Since stubborn jurors are generally good for the defense, that would be bad for Libby.

See also:

• A Peek in the Jury Room (this blog)

Labels: Inside The Jury Room, Interesting Cases in the News

I've posted an update to Friday's post on the Philip Morris decision to account for Justice Breyer's comments at oral argument. He seems to also support a 100-1 ratio of compensatory to punitive damages when applicable. Which means that five current justices would support such a ratio. It is at the end of this post: Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs

Much has now been written about the Supreme Court tossing out a $79.5M punitive damage award against Philip Morris in a smoking case where the compensatory damages were $821,000. Philip Morris v. Williams has been greeted by most as a victory for big business in limiting such awards (here, here and here). But it was not.

The key to understanding this is that Justice Stevens dissented. Stevens had formed part of the 6-3 majority in State Farm v. Campbell -- the last significant ruling on the law of punitive damages -- and State Farm had discussed much smaller ratios of compensatory to punitive damages, of 4-1 and 9-1.

Since Stevens voted to affirm the decision of the Oregon Supreme Court in Philip Morris, for the reasons stated in its opinion, this meant that a 100-1 ratio was within the bounds of acceptability to Stevens, and in accordance with his view of State Farm.

That State Farm majority ruling, often debated because of contradictory and confusing language, had held that an award of $145 million in punitive damages, when full compensatory damages were $1 million, was excessive and in violation of the Due Process Clause of the Fourteenth Amendment.

So how much was too much, became the question that lawyers and judges have asked. Justice Kennedy's majority opinion in State Farm, citing prior court precedent, said:

[W]e concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.

He also wrote that:

[F]ew awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process.

This was qualified with the following:

Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where "a particularly egregious act has resulted in only a small amount of economic damages."

Kennedy's majority decision had also said "We decline again to impose a bright-line ratio which a punitive damages award cannot exceed." And he had further noted that the injuries in State Farm (as well as its predecessors) were economic, not physical, and that these ratios might not hold up if the harm was physical.

Notwithstanding the qualifiers that Kennedy gave, the 9-1 ratio has been cited, like some talismanic incantation, for the idea that corporate exposure to punitive damages was capped close to that level.

Justice Stevens, in agreeing that the 100-1 ratio was acceptable, and in doing so despite an $800,000 compensatory award, has now completely destroyed that argument. Of the seven remaining justices from the State Farm court, by a vote of 4-3 they would not disrupt the Philip Morris 100-1 punitive verdict based solely on the ratio. (Rehnquist and O'Connor had both sided with the 6-3 majority in State Farm.)

So, unless both Alito and Roberts in a future decision decide that the Constitution calls for some arbitrary protections against those whose reckless behavior injures others, high punitive damage multipliers will be allowed in some cases regarding personal injury. It is worthy to note, in that regard, that both Scalia and Thomas are against such limits and would form part of the new majority of such a decision if they persuade either of the two new justices to join them.

While Philip Morris v. Williams represented a set back for that particular litigant (it goes back to Oregon for further consideration), the overall effect of the Stevens dissent may be very bad news for corporate defendants if reckless conduct injures others.

For more on the subject:

• Court Tosses Philip Morris Verdict, And Further Confuses Punitive Damages Issue (this blog);
• More on Philip Morris v. Williams (Point of Law);
  
• Punitive damages ruling: narrow, confusing victory for business (CNN Money);
• Round-Up (SCOTUS blog)
• US Supreme Court Hears Punitive Damages Case, Again (this blog, Dec. 5, 2006)
• Analysis: Tobacco case going back? (SCOTUS blog, Oct. 31, 2006)
  

Addendum: 2/24/07 -- Upon further review, the case against a 9-1 ratio seems worse for businesses than I had originally stated. I reviewed the transcript of the oral argument, found here, and looked at the comments of Justice Breyer (in response to a comment left here by another). Breyer, in addition to Stevens, was part of the 6-3 majority in State Farm. At page 30, line 5 of the Philip Morris argument Justice Breyer states:

...the more severely awful the conduct, the higher the ratio between the damage award and the injury suffered by this victim in court. And if it's really bad, you're going to maybe have a hundred times this compensation instead of only ten times or five times. So -- we take it into account, the extent of the harm that could be suffered, in deciding what that ratio should be. That means it goes to the evilness of the conduct.

Breyer seems to indicate that he would not stand in the way of a 100-1 ratio in the right circumstances.

Thus, even if Kennedy and Souter (both part of the State Farm decision) as well as new justices Alito and Roberts all voted for the strictest ratios possible on punitive damages, it wouldn't seem to matter with the current court composition. The idea peddled by many of a firm 9-1 ratio seems dead in the water with a case involving personal injuries.

I think that any corporation that took comfort in the Philip Morris decision would be making a grave mistake. And while Philip Morris may have won this battle, if the Oregon Supreme Court again upholds the verdict, it appears that they will lose the war of numbers if comes back to the U.S. Supreme Court.

Update: 1/31/08: The Oregon Court of Appeals has once again affirmed the $79.5M punitive damage award.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Personal Injury, Punitive Damages

From my fellow New York blogger, Tony Colleluori, who practices criminal law out on Long Island. His blog, That Lawyer Dude, has The Land of the Sheep and the Home of the Frightened today regarding his recent trip to the Capitol.

Labels: Blogging, Odds and Ends

Former New York Chief Judge Sol Wachtler has moved closer to reclaiming his lost law license. From my local paper, The Journal News, a recap of the sordid affair and conviction that led to his stunning fall:

The former chief judge of New York state's highest court who suffered a spectacular fall from grace after being arrested for stalking an ex-girlfriend has received preliminary approval to have his law license reinstated.

Sol Wachtler, who was disbarred after his 1993 conviction on federal charges including blackmail and extortion, has received approval from the state's Appellate Division for a hearing before the Committee on Character and Fitness, a key step toward reinstatement that was denied to him on his first application in April 2003.

Wachtler, now 76 years old, made international headlines after FBI agents arrested him near his home on Long Island on Nov. 7, 1992. Wachtler ultimately admitted he sent threatening and sexually offensive letters to Joy Silverman, a Manhattan woman with whom he had carried on an extramarital affair, then tried to extort money in a scheme to win her back after their relationship soured.

Labels: Attorney Ethics, Interesting Cases in the News, Judiciary

I'm not sure if this is a record, but if not it would seem to be awfully close. As per this article in the Charleston Gazette, the surgeon not only has 110 pending suits against him, but just lost his 3rd legal malpractice case against his lawyers.

It reminds me that in a recent study, 5.9 percent of U.S. doctors were found responsible for 57.8 percent of the number of medical malpractice payments.


(Thanks to Andrew Bluestone at the New York Attorney Malpractice Blog for the story. )

Labels: Medical Malpractice, tort reform

Notre Dame football coach Charlie Weis was mid-trial for his medical malpractice action when a juror collapsed, and the two defendant doctors rushed in to assist. I posted about the trial the other day.

The story is here. Not surprisingly, defense counsel attempted to argue the case should go on despite several jurors having seen the doctors minister to the fallen juror.

But in the eyes of the judiciary, I would have say that a mistrial is a no-brainer.

See also: Medical Malpractice -- Litigating the Surgical Error Case

Labels: Interesting Cases in the News, Medical Malpractice

The Supreme Court came down with a split decision on punitive damages today, avoiding a determination in a highly watched case on the penultimate issue of "How much is too much." In doing so, however, they tossed out the verdict based on the jury instructions, since the jury was told it could base its determination on how non-litigants had also been harmed. The case was decided 5-4.

That part of the decision avoiding the issue of "excessive damages" was not unexpected, as I wrote a few months ago (US Supreme Court Hears Punitive Damages Case, Again), as the justices fretted over the jury instructions.

The Oregon case, Philip Morris v. Williams, had resulted in an $800,000 compensatory award and a $79.5M punitive award.

This case has been an extraordinary odyssey that has taken it up to the Supreme Court twice on the subject. It goes something like this:

• Jury verdict for $800,000 in compensatory damages and $79.5M in punitive damages;
• Punitive damages reduced by trial court to $32M;
• Punitive damage award reinstated by Oregon Court of Appeals;
  
• Affirmed by Oregon Supreme Court;
• Remanded by US Supreme Court to decide punitive damages issue in light of its new ruling in State Farm v Campbell;
• Affirmed again by Oregon Court of Appeals;
  
• Affirmed again by Oregon Supreme Court;
• Now vacated by U.S. Supreme Court based on the jury instructions.
  

Justice Breyer's majority opinion starts with this summary:

The question we address today concerns a large state-
court punitive damages award. We are asked whether the
Constitution's Due Process Clause permits a jury to base
that award in part upon its desire to punish the defendant
for harming persons who are not before the court (e.g.,
victims whom the parties do not represent). We hold that
such an award would amount to a taking of "property"
from the defendant without due process.

Since the jury instructions included a charge that Philip Morris could be punished for harm to non-litigants, the court never reached the ultimate issue of what constitutes "grossly excessive" punitive damages.

The problem with the majority's view is that the "degree of reprehensibility of the defendant's misconduct" is already before the jury on the issue of punitive damages, and that includes the dangers to others. How then, not to consider the harm to others?

The hair-splitting of the court was extraordinary in considering the issue of how to view the dangers or harm presented to non-litigants. The holding by the court came down to this: You can show potential harm to others in order to argue that the conduct is reprehensible and therefore worthy of being punished with punitive damages. But a jury can't consider actual harm to others. I hope you followed that Clintonian parsing, because it was too much for four of the justices. Justice Stevens,wrote in dissent:

While apparently recognizing the novelty of its holding... the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant's conduct -- which is permitted -- from doing so in order to punish the defendant "directly" -- which is forbidden...This nuance eludes me....
[T]here is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those "bystanders" as well as the harm to the individual plaintiff. The Court endorses a contrary conclusion without providing us with any reasoned justification.

Justice Ginsburg (joined by Scalia and Thomas) felt the same way on this issue, writing:

The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties.

Thus, a judge must now tell a jury in a punitive damage case that they may consider the reprehensibility of the defendant's conduct toward others, but not the harm to them. If four Supreme Court justices don't understand this formula, why would a jury?

The case now goes back to the Oregon Supreme Court, perhaps to clarify its opinion on how the jury instructions were used, or perhaps for a new trial with clearer instructions (if that is possible). Unless, of course, all the litigation ultimately drives the plaintiffs' lawyers bankrupt.

The three opinions are here:PhilipMorris.pdf

[Update: 2/23/07 -- Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs - based on the dissent of Justice Stevens and oral argument comments of Justice Breyer]

Labels: Personal Injury, Punitive Damages

Two articles worth noting. The first is a December recap of how laws are changing in the 50 states over the last couple of years (thanks to Juvan's Health Law Update). The second is a general article this past weekend on the subject of fake drugs geared more for members of the general public that may not have been exposed to the issue in the past (thanks to Adam Fein's Drug Channels):

• Red State, Blue State -- and Green, Yellow and Orange, Too (Pharmaceutical Commerce, Dec. 2006)
  
• Is Your Medicine Dangerous to Your Health? (Parade Magazine, 2/18/07)

I last discussed counterfeit drug legislation in New York and on the federal level at these links:

• Does Congress Understand the Counterfeit Drug Problem? (1/18/07)
• New York Counterfeit Drug Bill Affected by Election? (11/27/06)
  
  

Labels: counterfeit drugs

The other day I wrote of Notre Dame football coach Charlie Weis suing his doctors based on a failure to recognize life-threatening complications after his gastric bypass surgery. This resulted in Weis bleeding internally for more than a day and ultimately incurred permanent nerve damage to his legs.

The story highlights a sharp issue in surgical error cases: Simply causing an injury during surgery is one thing, but the failure to recognize that injury is something else entirely. The latter is more likely to be provable malpractice than the former.

Those who litigate these cases know the drill well: The potential client calls regarding a bad surgical result. Simply having a bad outcome, though, is not malpractice. If the problem was seen at the time and the surgeon rendered treatment for it, the case may well be rejected by experienced malpractice attorneys so long as the injured body part was in the surgical field.

There are two reasons for the likely rejection of a case regarding a surgical error: First, if for example a surgeon nicks an adjacent organ, close to where s/he is operating, it is the type of surgical risk about which jurors are very forgiving, even if it shouldn't have happened. But because it is also a risk, it is therefore incumbent on the surgeon to check to make sure such injury did not occur. The failure to recognize that the injury took place is often, therefore, the actionable malpractice.

Other FAQs on New York medical malpractice from this site:

• New York Medical Malpractice Statute of Limitations;
• How Much Are The Legal Fees In A New York Personal Injury Or Medical Malpractice Case?
• How to Pick an Attorney / What To Do If You Are Approached In the Hospital About Hiring An Attorney
  

Labels: FAQ-Medical Malpractice

The ABA Journal has a great article on jury deliberations...with a camera in the jury room watching how it all happens. A couple snippets from A Peek in the Jury Room:

About 40 lawyers and judges at the ABA Midyear Meeting in Miami on Saturday got a peek into the deliberations of 50 actual civil juries handling trials in Arizona. There is one hitch. The findings come via researchers who, to get the court system and jurors to go along with the project, agreed that no one else ever will see the videotapes. And no identifying information will be released that would point to which juries and which cases.

This article popped into my email box yesterday, just one day after I wrote about the Scooter Libby jury walking into the courtroom on Valentine's Day wearing red shirts with hearts on them. I wrote how juries are so often underestimated, even by the lawyers who appear before them, and treated as dumb "malleable creatures."

So what does the researcher Shari S. Diamond say about the results of her study?

Diamond told the group that many of us hold misconceptions about juries. We believe, for example, that jurors are easily manipulated and often make up their minds before deliberations begin; that they take an immediate vote; and that the majority browbeats or otherwise persuades the others to come around.

"But actual deliberations were far more complicated in the civil cases we studied," Diamond said.

On Feb. 5th I was selecting a jury in a personal injury case and, lo and behold, a personal injury attorney was in my jury pool. He then proceeded to talk himself off the panel. As I noted in a separate post, a trial attorney talking himself off jury duty is a big mistake.

That picture above, by the way? Watergate jurors listening to Nixon's tapes. The sketch hangs in my office. As a constant reminder of so many different things, including the importance of juries.

Labels: Inside The Jury Room

Since I write a bit on the subject of counterfeit drugs, as a result of a matter I handled...

FDA Alerts Consumers to Unsafe, Misrepresented Drugs Purchased Over the Internet

The Food and Drug Administration (FDA) has become aware that a number of Americans who placed orders for specific drug products over the Internet (Ambien, Xanax, Lexapro, and Ativan), instead received a product that, according to preliminary analysis, contains haloperidol, a powerful anti-psychotic drug.

Reports show several consumers in the United States have sought emergency medical treatment for symptoms such as difficulty in breathing, muscle spasms and muscle stiffness after ingesting the suspect product. Haloperidol can cause muscle stiffness and spasms, agitation, and sedation.

Therefore, the agency is reissuing its warning to consumers about the possible dangers of buying prescription drugs online. FDA urges consumers to review the FDA Web site for information before buying medication over the Internet.

FDA laboratory analysis of the misrepresented tablets is ongoing, but preliminary analysis indicates they contain haloperidol, the active ingredient in a prescription drug used primarily to treat schizophrenia. FDA learned about these mislabeled and potentially dangerous products after their recipients complained to a U.S. pharmaceutical manufacturer.

The origin of these tablets is unknown but the packages were postmarked in Greece. Photographs of the tablets in question and the shipping packages can be seen at [this link]. If the tablets received from an Internet seller resemble those in the photos and haloperidol was not specifically ordered, do not take these tablets. Instead, consumers should notify their health care provider and report the suspected products to FDA by submitting a product quality problem report at [this link].

Although the involved consumers have named several Internet Web sites where the products were purchased, identifying the vendors is difficult because of the deceptive practices of many commercial outlets on the Internet. FDA is investigating this illicit trade and plans to release appropriate information when it is available.

Taking medication that contains an active ingredient other than what was prescribed by a qualified health care professional is generally unsafe. FDA continuously warns U.S. consumers of the possible dangers of buying prescription drugs online and urges them to review the FDA Web site for additional information prior to making purchases of medication over the Internet (at this link).

For more on the problem of Counterfeit Drugs:

• FDA Counterfeit Drug Page
• The Dangers of Counterfeit Drugs (Rep. Steve Israel)
• Counterfeit Drug Resource Page (Turkewitz Law website)
• Protect Yourself From Counterfeit Drugs (National Consumers League)
• Posts in this blog on counterfeit drugs
  

Labels: counterfeit drugs

From The Washington Post (reg. req.):

Despite the potential risks, Notre Dame football coach Charlie Weis decided to have gastric bypass surgery in June 2002 because he said he was afraid he would "drop dead" if he didn't lose weight.

Weis suffered life-threatening complications and nearly died after the surgery. Yesterday, he testified in his medical malpractice case against two surgeons that he has struggled with his weight all his life.

...

Weis claims in his suit that Massachusetts General Hospital physicians Charles Ferguson and Richard Hodin acted negligently by failing to recognize life-threatening internal bleeding and infection two days after the surgery.

Defense attorneys have said the doctors cared for Weis properly and that he experienced one of the known complications of the surgery.

Labels: Interesting Cases in the News, Medical Malpractice

New York City's Transit Authority was found liable yesterday by the Court of Appeals, for a trip and fall accident on subway stairs it neither owns nor controls.

A 4-1 majority of the high court adopted a 101-year old "Schlesinger rule" that imposes on common carriers a duty to provide safe ingress and egress on approaches that are "constantly and notoriously used."

The court wrote:

Where, as here, a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger.

...

In the case before us, the evidence at trial was sufficient to establish that the stairway in question was used primarily as a means of access to and from the subway. Therefore, defendants had a duty to maintain the stairway or to warn patrons of any dangerous condition. So imperative is the duty to provide a safe means of access to and from the subway that such duty may not be delegated to another. Thus, even if the responsibility to maintain the stairway resides in another entity, defendants may not avoid their responsibility "to at least provide against injury to its passengers by erecting such barricades, or giving such warning, as [would] guard against accidents.

The decision in Bingham v. New York City Transit Authority is here.

Labels: Personal Injury, Slip and Fall

A week ago I headlined that Rudy Giuliani had screwed up by not following changes to New York's new attorney rules on advertising. In addition to leading in the polls for a presidential nomination, Giuliani is also a practicing New York attorney. Since these are Disciplinary Rules, they're important.

I checked yesterday and Bracewell & Giuliani has now complied, as have some of the others on the two lists I provided. Former Mayor Ed Koch's firm Bryan Cave, among a gazillion others with New York offices both prominent and not, is still in default. And whether New York attorneys comply with the more substantive rules than the one I picked on is anyone's guess.

While I've written about many of the problems and challenges the new rules will have, the biggest one (for any rule that survives legal challenge) is likely to be enforcement. The resources since don't exist to chase everyone down, which means that any enforcement is going to be selective, and therefore it will likely be discriminatory in some fashion.

If the old rules were thinly enforced regarding advertising and solicitation (particularly with respect to the abhorrent practice of "chasing" in personal injury matters), simply creating new ones is not likely to cure the problems that do exist.

Other links to the subject:

• New York State Bar Association (with a blacklined copy of the rule changes)
  
• New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site)
• New York Advertising Rules (Sui Generis)
• Some More Discussion About New York's Attorney Advertising Rules (New York Civil Law)
• Major Law Firms Ignoring New York's Ethics Rules on Advertising (this site)
  
• NYSBA Rules Fiasco (The Common Scold)
• BigLaw In Violation of NY's New Advertising Rules (My Shingle)
• Controversy Continues Over N.Y. Ad Rules (Law.com Blog Network)
• Are Law Firm Web Sites Attorney Advertising? (WSJ Law Blog)
  

Labels: Attorney Ethics, Judiciary

A Nassau County slip and fall case ran aground when the laywer-husband of the injuried plaintiff was found to be in violation of an ethical rule. The accident occurred in the parking lot of a restaurant. The husband had a loss of consortium claim and appeared pro se, and also sought to represent his wife.

It seems, however, that he was not only the husband but also a witness to the accident. While he could represent himself pro se, he could not represent his wife since that violates the lawyer-witness rule, DR 5-102 [1200.21]:

A lawyer shall not act, or accept employment that contemplates the lawyer's acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client.

The attorney tried to get around this by saying that he was not employed as the attorney of record for his wife, that his wife was also pro se, and that he had a power of attorney to appear at conferences for her. The court rejected this rather creative argument.

A nice exposition on the law by Justice Lamarca in Nassau. The case is Smolensky v. T.G.I. Fridays.

Labels: Attorney Ethics, Personal Injury, Slip and Fall

It was just last week that I discussed a personal injury attorney that talked himself off a jury I was picking, and how this was a lost opportunity to see trials from a wholly new perspective.

Then in today's New York Times (reg. req.) comes this remarkable piece about the Scooter Libby jury:

Before the jurors departed on Wednesday afternoon, they filed into the courtroom, all but one wearing bright red T-shirts with a white valentine heart over their clothes, to the uncertain laughter of many in the courtroom.

But as one juror, a retired North Carolina schoolteacher, rose to speak, Judge Walton became visibly anxious that the juror might say something inappropriate that could threaten the trial. Jurors are not supposed to speak and are supposed to make any concerns known through notes to the bench.

The juror said they were wearing the shirts to express their fondness for the judge and the court staff on Valentine's Day. He then added, to the judge's growing discomfort, that they were unanimous in this sentiment, but they would all be independent in judging the evidence in the Libby case.

The sole juror who apparently declined to wear the shirt was a woman who had been a curator at the Metropolitan Museum of Art.

Critics of the jury system like to think that juries are dumb; that they are all malleable creatures that will do whatever a lawyer asks of them. In doing so, they conveniently forget that juries are usually comprised of community members no different from one's own friends, relatives and neighbors.

I am reminded of this daily, as I look at four Watergate trial images, including two of the jury, that grace my office wall , souvenirs of a Queens medical malpractice trial where I represented the estate of the artist. One is above and you can see them all at my law firm website.

The jury sketches (and Scooter Libby's jury) should be a constant reminder that power doesn't rest in the hands of one all powerful judge, but in the hands of your neighbors. Who should never be underestimated.

Labels: Inside The Jury Room, Inside The Well, Interesting Cases in the News

A Long Island animal rights activist that was fired from a volunteer position by the town of Southampton, for speaking out against their animal euthanasia policy, has been vindicated by a jury. From Newsday:

A federal jury awarded an East End animal rights' activist a $251,000 judgment Wednesday in a case that also compelled Southampton town to re-examine its euthanasia policy for stray cats and dogs.

Patricia Lynch said the town unfairly ended her work as a volunteer at its animal shelter after she used a radio show and newspaper column to speak out against putting the animals to sleep. The end of her work at the shelter, her attorney argued in U.S. District Court in Central Islip, made it impossible for her to continue rescuing the animals and place them in local homes...

[U.S. Judge Arthur D.] Spatt found that just like other municipal volunteers, such as volunteer firemen, Lynch did have First Amendment rights to free speech and due process...

Labels: Inside The Jury Room, Interesting Cases in the News

In the wake of Hurricane Katrina, State Farm is baling out of the Mississippi market. Their motto, "Like a good neighbor, State Farm is there," apparently no longer applies in that storm damaged state. From an AP story today:

State Farm: No new policies in Miss.

State Farm Insurance Cos. is suspending sales of any new commercial or homeowner policies in Mississippi starting Friday, citing in part a wave of litigation it has faced after Hurricane Katrina, a company official said Wednesday.

Mike Fernandez, vice president of public affairs for State Farm, said Mississippi's "current legal and political environment is simply untenable. We're just not in a position to accept any additional risk in this homeowners' market."

One has to assume this is related to State Farm getting whacked with a $2.5M punitive damage award for failing to honor their Mississippi policies. (State Farm should be used to punitive damages by now, having been hit before and finding the case go all the way to the Supreme Court.)

State Farm's troubles are probably not helped by the fact that Senator Trent Lott is a State Farm policyholder that had to hire an attorney to recover on his own policy.

Apparently, State Farm finds its easy to collect premiums but isn't all that thrilled about paying out claims. These are the types of "good neighbors" I can do without.

Labels: Insurance Industry

Brooklyn Supreme Court Justice Theodore Jones Jr., was sworn in today as a Judge on the Court of Appeals. From the Times Union ( Albany):

Gov. Eliot Spitzer's first nominee to the state's highest court - an African-American Vietnam veteran - was sworn into office this morning in a moving ceremony in Court of Appeals Hall [pictured at right].

Surrounded by family, friends and downstate colleagues, former Brooklyn Supreme Court Justice Theodore Jones Jr., 62, admitted to being overwhelmed.

"I take this responsibility very seriously, aware of the almost 200 years of history in this particular court," he said. "Next to the Supreme Court of the United States, this is probably the most important appellate bench in the country."

As he acknowledged February as Black History Month, Jones said he was mindful that he stands "on the shoulders" of those who preceded him, including George Bundy Smith.

Judge Jones is also a minority on the court in ways unrelated to race: New York's seven-member Court of Appeals has just three men.

Labels: Judiciary

From today's New York Post:

L.I. TEEN: BELL MADE ME TACO ILL

A 16-year-old boy says he suffered "severe and permanent personal injuries" after eating food from a Long Island Taco Bell.

In papers filed in Manhattan Supreme Court, James Robinson, of Rockville Centre, says he "experienced great pain and suffering" and was hospitalized with E. coli poisoning after his mother picked him up some dinner at a now-shuttered Taco Bell in Hempstead.

The incident took place in mid-November - weeks before word of an outbreak of E. coli poisoning at several northeastern Taco Bell outlets became public.

I note that the venue selected was Manhattan, more liberal than the very conservative Nassau County where the boy lives and where the restaurant was located (and where I grew up). I have to assume that the venue choice of Manhattan was based on the location of either the restaurant franchisee or the merchant that supplied the vegetables. Taco Bell HQ is in California.

Labels: Interesting Cases in the News, Personal Injury

New judicial selection rules in New York faced a new problem today when the New York Law Journal reported on its front page that trial justices are opposed to their being part of new screening committees, being set up by Chief Judge Judith Kaye.

The new screening committees were announced in this Feb. 8 release and discussed by Matt Lerner over at New York Civil Law.

A resolution was adopted unanimously by more than 100 justices who attended the association's Jan. 27 annual meeting.

See also:
New York Near Deal on Judicial Selections? (This blog, 1/12/07)

Labels: Judiciary

Anna Nicole Smith left behind a spider web of litigation that not only won't end soon, but could even get worse if her death is not from natural causes.

Over at FindLaw, Joanne Grossman writes a fairly thorough article entitled: The Litigation-Filled Life of Anna Nicole Smith, and the Legal Aftermath of Her Demise, but leaves out one big "what if."

In discussing the future, she leaves out the potential for a wrongful death action if her death is found to be caused by drug-related issues. Such an action could be brought by the surviving daughter against someone that facilitated her acquisition of the drugs (if that is what happened, it is speculative at the moment).

And making matters worse, that person might be one of the people currently vying for custody of the child. It's enough to make your head spin.

It is important to note that neither accidental or intentional overdose would preclude a wrongful death action (at least in New York). If one were to hand a suicidal person a gun, for example, the one that furnished the gun could be found negligent.

Since it has been reported that she may have had as many as 10 different medications in her room (and assuming that drugs were the cause), and also that she had a reported history of drug problems, the provider of those drugs could be found negligent for having supplied some of the medications.

Of course, with toxicology results not expected for some time, folks will have to wait. But there certainly looms the potential for a miserably complicated set of lawsuits to become more so.

Labels: Interesting Cases in the News, Wrongful Death

Personal injury claims are difficult if small, due to the problem of finding an attorney for representation. A great read is Anderson Cooper's February 7th story on Allstate practices when it comes to such small claims, when people find out that Allstate's "good hands" stuff is apparently just marketing, and not reality. The lede:

Insurance companies fight paying billions in claims
Put yourself in the driver's seat of this accident. You are heading down the street when a truck comes out of nowhere and slams into the right side of your car. The damage to the vehicle is obvious: dents across the passenger door.

You are hurt too, thought it's not obvious how much: a slight cut above your eye, an ache in the neck.

Your doctor says your spine was injured, you have soft muscle tears, and the pain in your neck mostly likely is whiplash.

It's going to need therapy, she says, and some time off work to heal. And in the end it's going to cost you $15,000 in medical payments and another $10,000 in lost wages, because you took so much time off work.

But when you send the $25,000 bill to the insurance company of the person who hit you, the insurance company says it's only going to pay you $15,000. You can take it or leave it.

What do you do?

The rest is here.

Surprise, surprise, taking premiums is a lot more fun than paying out claims.

And thanks to The Tortellini for the heads up.

Labels: Insurance Industry, Personal Injury

A great piece yesterday at Judicial Reports regarding the ongoing trial of former boss Clarence Norman, Jr. and the testimony of judges:

Half-Baked Fix
By Jason Boog
Posted 02-09-07

The latest trial of Clarence Norman, Jr., has revealed all the nasty machinations of the ex-party boss's judge-picking apparatus. Judges have taken the stand to hammer the very system that created their careers. That means they have also offered a warning to judicial selection reformers whose proposals fail to address nomination systems in the lower courts — from which judges for the upper tier are often plucked.

Last week, former Civil Court Judge Karen B. Yellen nearly broke down on the witness stand, recalling how Democratic Party leadership undermined her re-election bid in 2002.

Dressed in a bright red blouse with her black hair trimmed short, Yellen described the financial train wreck that effectively ended her contested campaign. Brooklyn's Democratic Party leadership had demanded $9,000 more from her depleted coffers, she said, threatening to withdraw its support for her if she failed to come up with the dollars.

"There wasn't enough money left in my campaign finances for it. This was a fight for my career," she said.

Over the last two weeks, the prosecution in the final trial of former Democratic Party leader Clarence Norman, Jr., called four judges to the stand, giving court watchers a fly-on-the-wall perspective into the petty disputes, bankrupt campaigns, and childish struggles that marked the end of Norman’s reign.

All four judges blamed party leadership, criticizing the very system that created their careers.

Much more of the article at this link.

Prior posts from my own site:

• How to Buy A Gavel;
• New York Judiciary Set For More Bad News
• How Much For That Brooklyn Judgeship?
  

Labels: Judiciary

Rudy Giuliani is apparently in violation of New York's new ethics rules that went into effect one week ago. The former U.S. Attorney for the Southern District of New York, mayor, and now presidential candidate, has failed to label his firm's web site as "attorney advertising" as required by the new Disciplinary Rules. Law firms large and small, famous and not, with New York offices continue to show widespread ignorance or disregard for the new rules on attorney advertising. While some may have constitutional concerns, only one is known to have brought a legal challenge on that basis.

Despite front page treatment of the news in the New York Law Journal and wide discussion in blogs since the proposed rules were announced last June, a great many firms have committed an ethical violation. (For a presidential candidate, among others, that's probably not good.)

I wrote last week of the failure by 11 of the largest 15 firms in the nation (with New York offices) to comply with the easiest part of the rules, putting the words "attorney advertising" on the home page of their web sites. This was picked up by Law.com Blog and WSJ Law Blog giving the news a bit more distribution. Many have since complied. A few that are currently in violation of the ethics rules:

• Bracewell & Giuliani (Rudy Giuliani firm, with New York office)
• Baker & McKenzie (largest firm in the U.S., with over 3,000 attorneys)
• Akin Gump (creator and sponsor of SCOTUS Blog, leading blog on the U.S. Supreme Court)
• Morgan Lewis (New York based firm with over 1,000 attorneys)
• McDermott, Will & Emery (leading Chicago firm with NY office)
• Foley & Lardner (leading Milwaukee firm with NY office)
• O'Melveney & Myers (Los Angeles firm with NY office)
• Bryan Cave (largest firm in St. Louis, NY office is home to former Mayor Ed Koch)
• Raoul Felder (high profile matrimonial attorney and TV talking head)
  

Since a Google search of New York attorneys returns 16 million hits, I didn't spend too much time on this. It appears clear though from a brief spin through sites large and small that compliance failures are common.

There are a few possible reasons:

• Ignorance - Some lawyers don't keep abreast of changes in the law (or in this case, disciplinary rules);
• Assumption that someone else has taken care of it;
• Vagueness of the rules: As I wrote last week, the rules apply if the "primary purpose" of the web site is the retention of clients. That definition is both vague and over broad and, I think, is likely to fall to constitutional challenge.

Personally, I think the primary reason is the first: Ignorance. This is not based on scientific survey, of course, but on a version of Occam's Razor: All things being equal, the simplest answer tends to be the right one.

Other links to the subject:
New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site)
New York Advertising Rules (Sui Generis)
Some More Discussion About New York's Attorney Advertising Rules (New York Civil Law)
NYSBA Rules Fiasco (The Common Scold)

[Update 2/15/07: Rudy Giuliani Finally Complies With New York Ethics Rule)

Labels: Attorney Ethics, First Amendment, Judiciary

No, the headline is not a joke. From a local TV station:

A state senator from Brooklyn said on Tuesday he plans to introduce legislation that would ban people from using an MP3 player, cell phone, Blackberry or any other electronic device while crossing the street in New York City and Buffalo.

NewsChannel 4 reported that Sen. Carl Kruger is proposing the ban in response to two recent pedestrian deaths in his district, including a 23-year-old man who was struck and killed last month while listening to his iPod on Avenue T and East 71st Street In Bergen Beach.

"While people are tuning into their iPods and cell phones, they're tuning out the world around them," Kruger said. The proposed law would make talking on cell phones while crossing the street a comparable offense to jaywalking.

Maybe the Senator should just put a big "kick me" sign on his back. While New Yorkers are often seen as liberal with respect to government intrusion in our lives, this seems to go well beyond the pale.

Chance of passage? Someplace around zero.

Labels: Odds and Ends

Court of Appeals Chief Judge Judith Kaye, who has pushed hard for judicial reform in New York, is to be reconfirmed by Gov. Eliot Spitzer afternoon.

A ceremony is planned in the Red Room of the Capitol at 1 p.m.

(from Capitol Confidential)

Labels: Judiciary

New York's statute of limitations is just 2 1/2 years in medical malpractice cases, which is brutally short when it comes to the "failure to diagnose" cancer cases. Often the malpractice is not even known (because the diagnosis was missed) until after the statute of limitations has passed.

A few days ago, the Appellate Division decided Trimper v Jones, and this demonstrates how medical practitioners get immunity from suits regarding a failure to promptly diagnose a cancer:

[D]ecedent sought treatment from Dr. Jones for a flare-up of eczema and that he subsequently showed her a mole on his left shoulder that concerned him because it seemed to be growing. Dr. Jones excised the mole and had it biopsied in October 1999. Dr. Jones advised decedent on October 29, 1999, through plaintiff, that the lesion was a minor nevus and was not malignant. Decedent next saw Dr. Jones in January 2001, when he experienced another flare-up of eczema, and he again saw Dr. Jones in March 2002 for a flare-up of eczema. At that time, he pointed out a lump under his left arm, and Dr. Jones referred him to his internist. Upon removal of the lump by a surgeon, it was determined that decedent had metastatic melanoma. Decedent did not see Dr. Jones again, after his appointment in March 2002. Plaintiff commenced this action in February 2003, and defendants thus met their burden of establishing that the statute of limitations, which began to run in October 1999, had expired.

While New York does allow for some exceptions to the time limitations rule, they are not applicable in this type of matter. One could conceivable extend the statutory period under the "continuous treatment doctrine" if treatment was continuing for the same condition that gave rise to the lawsuit. But if the diagnosis was missed there is unlikely to be any treatment for that condition.

New York, unlike some other states, does not have the time limitation starting to run from the date of discovery of the malpractice. The effect is to give immunity to medical care providers who miss a diagnosis, tell a patient all is well, and such error is not discovered until the 2 1/2 year period has elapsed.

In a prior post I had discussed the need for speed sometimes in contacting an attorney. Sadly, it is sometimes impossible.

For other FAQs on New York medical malpractice, click this link.

Labels: FAQ-Medical Malpractice, Medical Malpractice

Yesterday I had a pool of 30 jurors. Four of them were lawyers. One tried personal injury cases.

Now you would think that of all people in the world, the ones that try cases would be least likely to say things to deliberately get booted from the jury panel. After all, no one appreciates the need for jurors more than those who work in the well of the courtroom.

But more importantly, the experience of being a juror is one that every attorney should have. You might not learn anything new about law or about trial tactics in a routine matter, but you learn what jurors go through. This potential juror who did mass torts litigation proceeded to say the magic words to get kicked, either because he was too busy, or just too snobby, to sit on a routine trip and fall sidewalk case. (Since jury duty can be deferred a few times for scheduling problems, it was likely unrelated to being too busy.) Deliberately getting kicked off a jury panel is, in my view, a lost opportunity.

I sat once in the late '90s on a criminal case. And while it was a run-of-the-mill burglary -- knocking off a fish truck in broad daylight in midtown Manhattan while being trailed by two undercover cops -- and the lawyers weren't that good, it was an altogether different experience seeing a trial from the jury box. And from the jury room.

No one should ever mistake the inside of a courtroom for the inside of a jury room. And no lawyer should turn down the opportunity to serve.

Labels: Inside The Jury Room, Inside The Well, Odds and Ends, Personal Injury

The vagueness of New York's new attorney advertising rules is bound to cause First Amendment problems. Speech is restricted with the use of vague terms.

Yesterday, I published a list of major law firms with New York offices that had not complied with the easiest part of the new attorney advertising rules, marking their home page as "attorney advertising." (Some have since added the words.) While I poked a bit of fun at them in the process for not doing so, some can possibly make an argument for not putting the words up by claiming that the retention of clients is not the "primary purpose" of the site.

This is illustrated by a Carolyn Elefant post at My Shingle that inevitably leads to yet more issues. She is admitted to practice in New York, but her energy regulatory practice is out of Washington D.C. She says she won't put the Scarlet A of advertising up because her web site is multi-dimensional and advertising isn't the "primary purpose." She acknowledges though, that "one purpose of my website and blog is to retain clients."

So how, exactly, will "primary purpose" be defined? And does that refer to New York clients being the "primary purpose?"

I wrote of the vagueness issue when I asked, Is My Family Photograph An Ethical Violation in New York?, and followed up with another post here. There are more problems with phrases such as "techniques to obtain attention" and portrayal of lawyers "exhibiting characteristics clearly unrelated to legal competence."

Two other law firm examples before I go, which are the bookends to Ms. Elefant's gray area of the "primary purpose" of a web site: Nicole Black over at Sui Generis has a website for her business doing work on a contract basis for New York firms. Since the rules do "not include communications to ...other lawyers" her site need not have The Mark.

My own site as a New York personal injury attorney, however, has The Mark at the bottom. While I think many of the rules will be struck down as unconstitutional due to their vagueness, I must face the reality that personal injury firms were the target of much of the rules. And I'd rather write about the issues than be the test case.

The litigation has already started, covered in this post at Sui Generis, complete with link to the Complaint.

Labels: Attorney Ethics, First Amendment, Judiciary

Despite New York's new attorney disciplinary rules on advertising going into effect today, and despite months of discussion, most major law firms have apparently failed to comply. The list below includes 11 of the 15 largest firms in the nation.

A review this morning of firm web sites with offices in New York finds that the following are not marked as attorney advertising on their home page (or even their New York page if NY is not the home office), as the new rules mandate:

• Baker & McKenzie;
• Weil Gotshal;
• Jones Day;
• Sidley Austin;
• Mayer Brown;
• Holland & Knight;
• Akin Gump;
  
• Morgan Lewis;
• Hogan & Hartson;
• Morrison Foerster;
• Foley & Lardner;
  
• Kirkland & Ellis;
• Orrick Herrington;
• Dechert;
• McDermott, Will & Emery.

If these firms have it, I couldn't find it.

This is not, by any means, an exhaustive list. It is the point I stopped after realizing that most major firms with New York offices were apparently violating the ethics rules by failing to mark their site appropriately. With some of these firms now paying $160,000 per year (plus bonus) for the best and the brightest, I'd love to hear the excuses they give.

The failure to comply is not limited to the big firms, of course. A quick Google search with "New York [insert specialty]" finds the problem to be widespread.

(Nicole Black, over at Sui Generis, likewise noted the lack of compliance, and also wrote of a lawsuit to be filed today challenging the rules)

What the New York judiciary will do about this is any one's guess. Mine is that they send out a spate of warning letters demanding compliance under threat of reprimand. If they fail to enforce, then the new rules become like jaywalking...an unenforced law. And that would only hurt the credibility of the courts, which means that enforcement must come. (And yes, my own law firm website is in compliance.)

For more on the issue:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site)
• New York Advertising Rules Roundup (Sui Generis)
• 2007 Changes to the New York Ethical Rules Re: Lawyer Advertising (Legal Ease)
  
• Some More Discussion About New York's Attorney Advertising Rules (New York Civil Law)

[Addendum: As of 1:52, EST on 2/1/07, two of the firms above have complied (either I didn't see it before, or they added it: Weil Gotshal and Hogan and Hartson (in itty bitty, light colored font)]

Follow-up post at this link.

Labels: Attorney Ethics, Judiciary