Will Brooklyn lawyer Marina Tylo be spanked for a frivolous defamation suit against a New York law blogger?That is the question being asked by Scott Greenfield over at Simple Justice. It seems that Tylo screwed up by serving a Summons prior to purchasing an index number. That's a no-no in New York, and has been for years. You have to first pay the index number fee to start the suit, then serve the summons.

Tylo was sued for legal malpractice as a result. But because the subsequent attorney still had time to rectify her blunder, the malpractice case against her was dismissed.

Andrew Bluestone, whose blog focuses on New York attorney malpractice, wrote the story up. Sort of. He actually just wrote a prefatory paragraph that introduced the decision. You can see his posting with the decision here: Serving a Summons before Buying an Index Number

But that blog post seemed to make Tylo upset. So she sued Bluestone, apparently because he had the audacity to report the story. Her claims include libel, negligence, gross negligence, intentional infliction of emotional distress, and "tortious interference with prospective contractual relations."

According to her legal filing, this is the entire text of Bluestone's allegedly tortious conduct, this being his introduction to the court's decision:

Here is the full text cite for a legal malpractice case in which plaintiff's attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07

That's it! You want the definition of frivolous? You got it right there in that filing. A simple factual statement. He didn't even offer his opinion, which of course, would be protected anyway under that little First Amendment thingie.

(Addendum: The exact definition of a frivolous suit is right here. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;)

And what kind of relief does Tylo seek? Aside from 10 million bucks, she wants Bluestone to remove his posting. The relief she requests includes:

• A retraction of his "libelous" statement; and
• "Removal of above stated statements, as well as other like and similar statements, from all publications, blogs and other media."
  

Perhaps she thought that by suing him she could purge the Internet of this posting, so people wouldn't see it when they looked her up. Tylo, of course, is not the first to have this brilliant idea of trying to purge the Internet of unfavorable references. She apparently has no clue about something called the Streisand Effect. (She also might find Dan Solove's book, The Future of Reputation On the Internet, to be of interest. Though reading it before filing suit would have been wise.)

So as a result of her idiotic suit against Bluestone she has drawn more attention to herself. Which probably wasn't what she had in mind. Especially since others might now offer their opinions. Like Greenfield did. Like I do now. And those would be constitutionally protected opinions I might add, though frankly, anyone with a license to practice law in this country should already know that.

One last thing, by the way, since I found her bio. If she cares about her Internet reputation, she might want to put a bit more care into how she presents herself:

I am a very experienced and competant attorney. I finished NYU law school and have over 14 years expiernce in legal matters relating to Real Estate. Even though by using a great attorney such as my self you can save a whole lot of money I do not charge excessive legal fees. I also have a lot of expeirnce in investing and owning real estate and thus I am in a position to trully understand and appreciate any pitfalls associated with all types of real estate transactions including Litigation, Closings, Tenant issues, and transactional negotiational matters. I am licenced in the State of New York and all Federal courts, and Supreme Court of the United States. I will fight for my Clients tooth and nail to get the desired results.

Ms. Tylo, welcome to the electronic age.

You can find more on the subject here (updated periodically as more write on the subject):

• Brooklyn Lawyer Marina Tylo Deserves a Good Spanking (Simple Justice)
  

"From the annals of the truly stupid comes this latest attempt to shut down a blawger."

• Does Marina Tylo File Frivolous Lawsuits? (Crime and Federalism)
  

"If some books are destined to on the big screen, there are some lawsuits destined to appear at Overlawyered.com."

• I Trully Hope She Learns From This Expiernce! (Defending People)

"I can't disagree with Scott, but the more salient point, in my view, is that Tylo chose the wrong defendant..."

• Marina Tylo Meets Barbara Streisand (Crime and Federalism)

"This wasn't a very good idea, since filing a frivolous lawsuit against a law blogger is not the type of event that other bloggers will ignore."

• Brooklyn lawyer Marina Tylo sues blogger for reporting that she was sued for malpractice (South Carolina Criminal Defense Blog)

  "...this ridiculous effort by Tylo to silence a blogger will end up earning her much more bad press than the one small post on Bluestone's malpractice blog did"

• New York Lawyer Sues Law Blogger for Reporting on Malpractice Lawsuit (Citizen Media Law Project)

  "Unless I'm missing something, this looks like a purely frivolous case, perhaps a situation where sanctions against Tylo are appropriate."

• Two Bloggers Sued, One by a Lawyer (Ambrogi/Legal Blog Watch)

  "What did Bluestone allegedly do to injure Tylo to the tune of $10 million? He quoted from a court decision in a legal malpractice case against Tylo."

• Watch What you Say About Lawyers (Overlawyered)

  "...several blogs have already 1) mentioned the strong privilege that attaches to fair reports of court proceedings and 2) suggested that Tylo will before long be well acquainted with the phrase 'Streisand effect'."

Labels: Frivolous Claims, http://www.blogger.com/img/gl.link.gifAttorney Ethics

This isn't about personal injury law, but about a 1/2 marathon trail race I am organizing. Unless someone gets hurt and sues me, of course. Then it will be about personal injury law.

This is the virgin running of the Paine to Pain 1/2 Marathon Trail Race on the Colonial Greenway, in Westchester County just north of NYC on September 28th. It starts at Paine Cottage in New Rochelle and ends -- after a spectacular loop of local trails in the areas of New Rochelle, Larchmont, Mamaroneck, Scarsdale and Eastchester -- at New Rochelle High School across the street from the start. I wrote about this a bit in May when the local paper ran a story about one of the trails we will use, and used me for the story. (See: Me on the Front Page of the Sports Section (Again))

The point of the race, which will be an annual event after this, is to officially dedicate the creation of the trail system. It came together just this year, after about six years of work and numerous meetings with local officials.

Trail races are not something you generally see in the New York City area. In fact, there is nothing else like this in the whole metropolitan area. (And if you are interested, we are limiting it to 200 people this first year, so sign up quickly.)

But in putting the race together, I found myself confronted with the liability waiver issue. Every sporting event has one. And the vast majority are in unreadable gobbledygook that makes the eyes glaze over. Why use Ambien for a sleep aid if you can find legalese?

In deciding how to handle it, I first had to determine what the point of the waiver was. Is it to protect the organizers if someone gets hurt and sues, or to protect the event participants from getting hurt in the first place (or to write it in such horribly stilted language that insures no one will read it)?

Sadly, most seem designed to protect the organizers, despite the fact that such protection likely already exists under the doctrine of "assumption of risk."

So mine was written with the participant in mind, not the organizers. And it starts like this:

I realize that these trails have many rocks, roots, stumps and other tripping hazards. The course can be narrow, crowded and wildly uneven. Wet weather may create mud holes and fell trees and limbs that race officials and trail maintainers don't even know about.

That's the informing part. And yes, I did feel a need to put a touch of legalese in it, so I dressed it up a bit to make it readable, cribbing here and there from other releases that I found online that were made, thankfully, without letting a lawyer muck it up:

I therefore release and discharge all race officials, volunteers, sponsors and municipalities, as well as the rocks, roots and other stuff, dead or alive, gnarly or not, that might cause me to get seriously hurt.

But let's just hope that nobody suffers anything more than a few scrapes and bruises.

If you're in the NYC area and looking for an excuse for a long run in the woods, come run with me on September 28th.

Labels: Running

With Senator Joe Biden being picked today by Barack Obama, I am three for three in the presidential sweepstakes for the major parties.

My call before the Iowa caucuses, with Guiliani and Clinton riding high:

Reps: McCain/Romney
Dems: Obama/Biden
Indep: Bloomberg/ Gary Hart (who correctly predicted an attack like September 11 and tried to warn)

As much as this New Yorker would like to see Clinton v. Giuliani v. Bloomberg, neither Hillary nor Rudy will get their party nominations.

But no, I went with a little, niche personal injury blog. I coulda had my name in bright, twinkly lights at places like Instapundit, Daily Kos, Andrew Sullivan, Talk Left and other nifty places. I coulda been a star. I coulda been somebody...

Labels: Random Notes

Justinian Lane at TortDeform has has been doing Inter Alia, a round-up of tort "reform" stories on the web. Certainly a valuable resource. (And he links this week to, inter alia, a tort "reforming" Chamber of Commerce that has brought it's own lawsuit;

Walter Olson provides the flip side of Lane with his round-up from the conservative side, focusing on toxic cases at Point of Law;

Bill Childs has put this week's Personal Injury Law Round-Up up at TortsProf with a link to, inter alia, the Big Foot hoax and subsequent lawsuit;

An Olympian Blawg Review is up at Chicago IP Litigation Blog;

And those four links provide a little round up of round-ups, and enough reading material for a week.

P.S. I usually stay out of presidential politics -- because once you get started you can't stop -- but before the primaries I made these predictions: McCain/Romney and Obama/Biden: Presidential Politics and the Iowa Caucus

Labels: Random Notes

The 11th Circuit Court of Appeals has upheld the Graves Amendment. That 2005 law protects car rental and leasing companies from claims of vicarious liability for injuries caused by their drivers.

The decision comes out of three consolidated suits in Florida, which had allowed (like New York) the injured to sue the owners of the cars, in addition to the drivers. The owners were held to be strictly liable for the conduct of the drivers if the drivers were negligent. This was a public policy choice made by the legislators of some states, since the owners, by being able to exercise some control over who drove their cars, were more culpable than the innocent victims.

But in 2005 a Republican congress decided to strip this power to control their own insurance laws away from the states, and preempted them by giving it to the federal government in the form of protection for the rental and leasing companies. (I wrote about my own rush to beat that law just days ago in The Million Dollar Listserv.) The hypocrictal conduct by the Republicans in usurping state authority for the benefit of these corporations has been widely derided.

While insurance laws are strictly state matters, the court held the statute constitutional under the Commerce Clause, due to the use and impact on rented and leased cars across state lines.

Given the current business friendly make up of the Supreme Court, I doubt that an appeal to that court would be successful unless other Circuits divide the issue. This is, to my knowledge, the first federal appellate decision on the law.

See also my post from last September from one of the lower court decisions: Car Rental Immunity Law Held Unconstitutional By Federal Judge.

Labels: Car Accidents, Insurance Industry

The listserv may be the single greatest tool the solo or small practice lawyer has. And this post explains why.

This is also a story about some of the best lawyering I ever did, and its connection to a listserv. While I suspect that the lesson may be old hat to many readers -- since you are obviously already connected or you wouldn't have found this blog -- I'm going to spill forth anyway on the odd chance you do not already belong to a listserv, or that this gets passed by a friend to at least one less-than-connected attorney.

The story involves the case I just blogged about in June that went to verdict. But if you think I'm going to brag about a brilliant legal argument or devastating cross-examination tip that I picked up and used, don't worry. It isn't about that.

Rather, it's about how a good listserv can spill forth a spectacular amount of small nuggets of information, any one of which can help turn a case. In the one I just tried, I had been alerted to an imminent change in the law. That change turned a 100K case into a seven figure case.

By way of background to appreciate this, you have to know that the car accident that injured my client occurred in July 2005, and that the car that did the damage was a leased vehicle. The Graves Amendment was then passed by Congress just three weeks after the accident. And that amendment destroyed the vicarious liability that existed in New York that held leasing companies responsible when their drivers caused accidents.

Within days of being retained by my client, and while she was still institutionalized in rehab, I learned through a listserv that a House-Senate conference had agreed to this amendment that would eviscerate her rights to recover for her injuries. I learned of the legislation just one day before I was to go on vacation, and I had no idea when President Bush would it. So I typed up a Complaint at home and rushed it into the courthouse the next day for filing, beating the presidential signature.

I'd like to tell you the best lawyering I ever did had something to do with one of my trials with fancy openings or summations, a great bit of research finding an obscure case or a brilliant legal argument. Or perhaps a story of an argument from the Second Circuit or New York's First or Second Appellate Departments.

But instead, the blunt reality is that the simple participation in a listserv alerted me to the passage of damaging legislation. Being connected kept me up to date. Being connected got my client to the courthouse door in time. There was another person injured in this accident, by the way, and his lawyer didn't file in time. I never asked, but I think it is safe to assume he was not connected to people who were discussing the latest of legal events.

So the utterly simple and routine act of typing up a standard personal injury complaint and getting it filed right away turned out to be one of the best things I've ever done for a client. Without it she would have been stuck with the insurance policy limits of the two cars involved, 25K and 100K. Instead, she was able to proceed against the owner/lessor for injuries that clearly exceeded those minimal policies, for an ultimate recovery that exceeds those numbers by seven figures.

And so if you are not connected to such a group in your geographic area, or at least your practice area, then find one. Or create one. This is all the more important for the legions of solo and small firm practitioners, giving you not only the opportunity to swap the latest in news, but the latest in court rules, judicial temperaments and local gossip that just might one day mean all the world to your client.

The constitutionality of the amendment, by the way, is currently on appeal.

Update: Just one day after posting this, the Graves Amedment Was Upheld by the 11th Circuit Court of Appeals

Labels: Law Practice

The Personal Injury Law Round-Up is up at TortsProf, this week by Christopher Robinette. So folks like me that have been out of the loop for a week now have an easy way to play catch up;

FindLaw gets busted trying to game the Google rankings by selling links for $12,000 per year. They had a Pagerank of 7. Now they have a 5. Will they be sued if they don't refund the money? (Kevin O'Keefe @ Real Lawyers Have Blogs and Oilman);

And whether one agrees with Justice Scalia's politics or not, there is one thing almost every agrees on: That guy can write. Lisa Solomon attended a talk of his on the subject, Scalia’s Remarks About Legal Writing. Solomon also has a picture of herself with the Justice at her site.

Labels: Random Notes

Sometimes the comments can be great. If only you find them. So here you go....After I posted about my tort "reform" op-ed in a local paper serving the million or so people in the commuter counties north of NYC, Ted Frank came in with a minor correction at Overlawyered. Then deep into the comments, a long discussion/debate on medical malpractice and academic studies broke out between Frank and Professor Richard Wright. So check out the terrific discussion starting at comment 16.

Blawg Review #171 is like a virgin. Why? If I told you, you wouldn't go to the link.

TortsProf Sheila Scheuerman takes her first swing at the Personal Injury Law Round-Up, and knocks the ball out of the park with a broad array of links.

Max Kennerly takes on an anti-class action piece in the WSJ regarding the constitutionality of cy pres distributions by George Krueger and Judd Serotta, picking apart some bad legal arguments that he sees.

And a giant table computer from Microsoft that has nothing whatsoever to do with personal injury law. But the commercial is funny as hell.

Labels: Random Notes

Talk about weird. Down in Galveston, Texas a man had a piece of his skull removed due to brain swelling after a stroke. He was supposed to have it put back after the swelling went down. But, as you may have guessed from the headline here, the hospital lost that part of his skull. That's not supposed to happen.

And it doesn't seem to be a small piece of skull that got lost. This was an eight inch by four inch piece. That's a lot of head bone, as one of my kids might say. Three times he was scheduled for surgery and three times it was cancelled before hospital officials finally admitted they couldn't find the piece of skull that should have been sent to the bone bank. Instead, he had to have titanium mesh implanted.

Suit was filed yesterday against the University of Texas Medical Branch on behalf of 53-year-old Marvin Simmons. Interestingly, plaintiff's counsel Tony Buzbee wrote in the suit, "This is not a case for medical malpractice."

Why go out of your way to say it wasn't malpractice but just plain vanilla negligence? My guess is the 2003 tort "reform" in Texas that provides protection for doctors and hospitals for any non-economic verdict over $250,000 for each of them, forcing the victims of malpractice to bear the burden of serious injuries themselves. So given a case that might be malpractice or might be negligence, depending on how the bone was lost, the attorney opts out of the malpractice choice in the suit.

Since I don't practice in Texas, I can't comment on that choice. Brooks Schuelke down in Austin would be better on that part. But if it happened in New York, I would plead the case both ways and decide after discovery how to proceed.

Update: Here is a copy of the Complaint: Simmons-v-UTMB.pdf

Labels: Medical Malpractice, Personal Injury

This post originally appeared April 13, 2008. It has been bumped up due to another moronic entrant into the field of trolling for lawsuits. The new site, at the bottom of this post, is WhoCanISue.com. And it, like SueEasy discussed here, raises substantial ethical and litigation issues:
----------------------------------------------------------------

When I first heard about SueEasy, I thought it was an April Fool's joke. But it was October when it first appeared as a development concept (see 10/23/07 post:So How Did You Find Your Attorney? SueEasy!!!). Then I thought it must be a practical joke created by some tort "reformers" to highlight really bad advertising that sometimes takes place. Standard operating procedure is to use anecdotes to tar everyone else to win further protections and immunities for big business.

Sad to say, it has now gone live and appears to be yet another grotesque form of marketing, except that this one is actually dangerous and can help kill legitimate cases. (Note: SueEasy links provided by a TinyUrl redirect, so that this embarrassment to the profession doesn't benefit from any PageRank by my linking to it.)

According to the site, "SueEasy is neither a law firm, nor is it a lawyer referral service." That leaves only one thing, a marketing portal of some kind, presumably where lawyers buy space. These types of dumps are a dime a dozen on the web, and I get calls from them all the time. (See: The Ethics of Attorney Search Services.)

But unlike other attorney search services, this one has the potential for some serious damage in a unique way to both client and attorney in personal injury matters.

First, from the client perspective. One question you might expect at a deposition or trial will be this: How did you find your attorney? That doesn't mean defense counsel can ask what was said, but they might certainly ask how you got to the lawyer you are using. Now can you imagine a jury finding out you used some company called Sue Easy? Perhaps a judge will allow the testimony, perhaps not, but I sure as hell wouldn't want to be in a position to find out when the answer is SueEasy.

And since you may share documents or write something to this company that advertises it is not a law firm, that stuff you send may not be protected by the attorney-client privilege and may be discoverable (and possibly admissible at trial). Which is to say, that is a way for a defense lawyer to get the SueEasy name in front of a jury.

Here's something else you might to consider: During jury selection one of the standard issues raised by defense lawyers is that anyone can bring a lawsuit. So if ever there was a way to reinforce that idea, contacting an advertising portal named SueEasy would do it. It's like handing a big, fat gift to the defendants.

Second, from the attorneys perspective. You have not only shot a stomach churning hole in your own client's case (and any fee you hope to recover), but you are also at the mercy of the advertising portal to act ethically. As I demonstrated in my other post on the ethics of these portals, this could be a real issue. For example, the site appears to be in violation of New York's ethical rules because it fails to state that it is attorney advertising.

You might also note the site owners are too embarrassed to identify themselves, so a participating lawyer would be ceding their marketing to an anonymous individual or company. Imagine that, a lawyer putting his or her law license into the hands of anonymous people. Try explaining that one to the disciplinary committee one day.

If you agree to be marketed by that portal, the disciplinary committee of your state may well say that they are your agent, and you are responsible for the content of their site and the conduct of the employees. And they may not look kindly on the willful blindness defense that you will try. ("Really? The site did that? Oh, my, I'm shocked, just shocked to find out. I'll have a talk with my people and maybe we'll do something else. Oh, thank you so much for telling me, Madame Chair of the Disciplinary Committee.")

So my advice to those seeking an attorney:

1. Ask around first. Your friends, relatives and neighbors are the best place to start.
2. Ask another attorney, even if outside the field you need. While you wouldn't want a medical malpractice attorney to handle your real estate venture, and vice versa, there's a pretty good chance that the attorney will at least know where to look for the right person.
3. After you get a few names from the above methods, you can check out their websites to see if they give clues as to what field(s) the attorney(s) claim to be proficient in, and interview the attorneys as to other cases in the field that they have handled.
4. An attorney search service such as Sue Easy is not just a bad idea, but a spectacularly bad idea, with this possibly be so dangerous as to harm your case or career. Any attorney who uses it for serious personal injury cases may well be committing malpractice.
   

This company is a bona fide twofer for defendants. They get both the horrible anti-plaintiff's lawyer press and they get stuff they can actually use in the courtroom. I keep thinking this must be a joke, as no right-minded lawyer would ever affiliate themselves with this outfit. But I fear that is not the case.

See also:

• Beware lawyers: Web 2.0 brings out same crazies as Web 1.0 (Real Lawyers Have Blogs):

  Please do not spend a lot of time evaluating whether your law firm should sign up for all the wacky services you hear of.

• SueEasy, So Easy It Can't Be Good, Really (Blawgraphy):

  As for potential litigators - talk about a hairball generator.

• SueEasy Goes Live -- Your Class Action Lawsuit Lottery Ticket (Michael Arrington @ TechCrunch)

  The site allows people to file (or search for) grievances, join with others looking for a payout, and eventually get the attention of a first class ambulance chaser to take your case.

• SueEasy.com (Walter Olson @ Overlawyered)

  Michael Arrington [TechCrunch] likely is a great deal too flattering in terming it a "Shangri-La for ambulance chasers"

• Only in America: SueEasy.com (Above the Law) updated 4/17/08, with this comment:
  

  i'm going to post a false advertising complaint against "www.sueeasy.com" for promising "instant legal bliss" while being aware that such a thing does not exist.

• Another Way For Lawyers to Embarrass Themselves (Simple Justice), updated 4/19/08 with a related post:

  Every few hours an email comes in touting some new scheme to suck in desperate attorneys.

-----------------------------------
August 7, 2008 Update: Another idiotically named marketing business has popped up, called WhoCanISue.com. TortsProf goes in search of the mystery owners (and read the comments). Screen shots of the commercials for this business are here.

Any lawyer that participates in these operations is an embarrassment to the profession.

More on this at:

• WhoCanISue.com (Walter Olson @ Overlawyered)
• Who Can You Sue? Click Here (Time Magazine)
• Is WhoCanISue.com a Scam? (Justinian Lane @ TortDeform)
• Another Lawyer Directory -- WhoCanISue.com (Carolyn Elefant @ Legal Blog Watch)
  

Labels: Attorney Ethics, Personal Injury

Perhaps the most significant bit of advice I've given to other attorneys came up yesterday. It wasn't so much about lawyering though, as it was about law office management. It popped up in the New York Times story of NYS Assembly Leader Sheldon Silver and his investment in Counsel Financial, a funding company for personal injury attorneys.

The advice stems from the fact that this company even exists. Funding companies are, as some lawyers learn the hard way, the last resort of accessing capital to stay afloat until cases taken on contingency get disposed of. Double digit interest is the norm.

And the problem exists because those that need the funds have been turned down by their bank for a traditional line of credit with much lower interest rates. Why turned down? Probably because they are now on hard times. The very reason they need the money is the very reason for the bank rejection. Banks don't want to lend money to those in distress. They want to lend it to people who are flush; those that don't need it.

So my advice is simple. If things are going well, get your line of credit. Now. Don't wait until you need it. Because then you'll be stuck borrowing from the lender of last resort.

Labels: Odds and Ends

I read the article in today's New York Times, front page of Metro above the fold, about New York State Assembly Leader Sheldon Silver and his loans to a company that finances personal injury attorneys. I kept looking for the meat -- that part where an impropriety occurs -- but found nothing out of the ordinary. It appeared to be muckraking without the muck.

The article discusses his $50,000 in loans to Counsel Financial, one of several companies that make high risk, high interest loans to lawyers so that folks like me can fund our cases (Full disclosure: I've never used one of those companies). This is, after all, a business with a particularly brutal business model: The attorney funds cases for years on a contingency, any one of which can run to tens of thousands of dollars, with the prospect of getting paid back when the case concludes. If it is successful. Cash flow is a huge problem from the business perspective. Getting started in a personal injury practice is particularly difficult for a lawyer without means. A certain ruthlessness is needed for case selection, to make sure you don't get stuck with bad cases. I've discussed this concept before: See, Medical Malpractice Economics.

The gist of the article is that Silver is not just the Assembly Speaker, but of counsel to Weitz & Luxenberg, a prominent New York firm whose principles are actively involved with Counsel Financial. But why would his investment in a firm that makes high risk loans be any more of a conflict of interest than his activities with the law firm itself?

Tort "reformers" such as Jim Copland at the Manhattan Institute (quoted in the article, commentary on it by Walter Olson at Point of Law), argue that his investment in the company encourages him to put the brakes on protectionist "reform" like damage caps on pain and suffering. After all, the bigger the business for the funding company, the more likely he is to have a profitable investment instead of a loss.

But that conflict already exists with his activities as a personal injury lawyer. In fact, that conflict exists with every single legislator regardless of whether they are lawyers or have businesses, whether they have interests are in Apple, GE, or some private concern. Our legislators are part-time, and are permitted to have other jobs. So conflicts are bound to exist, but since the one the Times highlights is no different than any other I find it odd to see it highlighted in such a fashion.

Now I am sensitive to conflicts of interest. In fact, conflicts were the source of my April Fool's Day hoax on whether Supreme Court justices should recuse themselves from a fantasy baseball case due to their involvement in a fantasy league. There clearly must be rules to deal with conflicts in legislatures. But in this case, we seem to be missing some actual muck that is needed to give a story such prominent placement.

A final note. The article first identifies Silver, at the outset of the article, as a trial lawyer:

Since early last year, Mr. Silver, himself a trial lawyer, made two separate loans to the company, Counsel Financial.

But then later on, the author concedes that he really doesn't know what the heck Silver does:

And it is not known what he actually does at Weitz & Luxenberg.

"The speaker voluntarily limits his legal work to serve only individuals and personal injury cases and does not represent lobbyists or clients who have business before the state," said his spokesman, Mr. Weiller.

He would not say whether the speaker ever appears in court to represent clients or describe his legal work in more detail.

That's just shoddy reporting.

More:

• Legal finance firms mentioned in NY Times today (Legal Broadcasting Network)
• Is Public Service a Part-Time Job? (Gotham Gazette - The Wonkster)
  

Labels: tort reform

The Department of Homeland Security is now authorizing itself to seize laptop computers at border crossings, and to hold them for as long as they want. Not to look for hidden bombs in the guts of the machines, but to look at the contents of the documents that it holds. For lawyers crossing a border with sensitive attorney-client documents, a potentially huge ethical problem has been created with such a handover.

Courtesy of Scott Greenfield, I learn that the Washington Post reported:

DHS officials said that the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

The policies state that officers may "detain" laptops "for a reasonable period of time" to "review and analyze information." This may take place "absent individualized suspicion."

Greenfield dealt with the issue from the standpoint of unregulated government power. Marc Randazza discusses the same news from the standpoint of moral outrage.

But this is a huge problem not just if you lose your laptop for a few weeks or months, but from the standpoint of actually handing over to the government confidential client information. That is, information that one is ethically prohibited from disclosing.

How does a lawyer with a laptop that contains his confidential files now cross a border if they are at risk of disclosing the confidences? This could be criminal investigations where the government itself is involved. It could be mergers and acquisitions. It could be anything.

And not just the laptop, but also the Blackberries and iPhones are at risk. If a laptop can be seized for an indefinite period, why not the handheld devices with all the messages from (or about) clients and pending matters? I wrote about this last year in iPhones, Attorneys and Ethics and the problem of turning over an iPhone (which has a non-removable batter) to some outside person for repair without the opportunity to delete the emails.

From an ethics standpoint, the lawyer crossing the border with client information has a whopper of a problem.

See also:

• More Fun With Laptop Detention (Reason)
• Homeland Security: We Can Detain Your Laptop Indefinitely Without Cause (The Consumerist)
• Why You Shouldn't Enter the US With Your Laptop (The Gadget Blog)
  

Labels: Attorney Ethics

TortsProf Bill Childs, as previously mentioned, has picked up the job of doing personal injury law roundups.

Today is his first edition, Personal Injury Roundup No. 1 (8/1/2008), with lots of good links to peruse, even during the dog days of summer. It's worth a visit for lots of recent news.

I note that under his "Goofy Stuff" category, however, -- and every law roundup ought to have such a category -- he places my piece on Ben & Jerry's Fear of Lawyers Kills Video Submission. I'll take that to mean Bill won't represent me in my claim. Harumph. I'll keep looking....