When I wrote three weeks ago about the possibility of the Hudson River splash landing testing New York’s 30-day anti-solicitation rules for attorneys, I did it with a question mark and with one eye firmly on the fact that it ended very well for the people on board the plane. It even ended well for the bar, as I found only one firm that appeared to violate the ethics rule. It also led me to explore, while the Second Circuit considered the issues of New York’s new rules, the myriad ways that ethics laundering can take place with lawyers hiring attorney search services to solicit, or running “articles” on their web sites about the crash.
I didn’t expect to write again so soon on the subject, but today’s horror in Buffalo with Colgan Air / Continental Flight 3407 crashing and killing 50 people will bring the subject of attorney ethics and the 30-day anti-solicitation rule right back to the forefront. You can read much more about the rules at the prior links, but this is the starting point from New York’s Code of Professional Responsibility:
DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death
(a) In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.
My analysis below — which will be updated in the future to provide for reactions from the bar to the crash — is limited to use of Google searches. First we’ll look at sponsored ads, and then natural search results.
- At 6:51 this morning I Googled “Buffalo Plane Crash” and came up with zero sponsored ads:/BuffaloPlaneCrash-2%3A13@6-51am.pdf
- At 6:55 I added “attorney” to the search phrase and came up with a few aviation firms that seem to have stock ads, but nothing obviously geared toward Buffalo:/BuffaloPlaneCrashAttorney-2%3A13@6-55am.pdf
- At 10:42, you now see some sponsored results for “Buffalo Plane Crash.” These don’t reference Buffalo in the ad, but that doesn’t mean it wasn’t a keyword that a marketer added to the search Google Adwords terms that would return this response. To me, a very subtle, but significant means of breaching the rules if that is how it was done. /BuffaloPlaneCrash-2%3A13@10-42am.pdf
The chance of this changing as attorneys try to solicit via the web is high, but at least the starting point has been frozen in time.
Update #1 (2/13 @ 12:32) – The first ad directly soliciting victims has now appeared. It is by the same attorney that ran an ad after the Hudson River crash. Here is the pdf:/BuffaloPlaneCrash-11%3A13-12-32pm.pdf And here is the ad:
Continental Crash Victim?
Helping Victims of Flight 3407
Contact Our Aviation Attorneys
Update #2 (4:44): I received a call from Reiter, and the ad was taken down.
Update #3 (10:07 pm): Buffalo law blogger Roy Mura (Coverage Counsel) found another ad that directly solicits for this accident, from Philadelphia attorney Joseph Messa. (Welcome to New York, Joe. Now please leave.) You can find the link in the comments to this post.
At the same comment by Mura we learn that the Buffalo firm of O’Brien Boyd now surfaces with the search term “Buffalo plane crash.” At their web site, the text now reads:
We have already received several phone calls about what happens when someone dies in a plane crash. As a public service, we wanted to provide some information to the general public. In any negligence case, the legal system asks two basic questions: …
Also in the search findings for “Buffalo Plane Crash” are these firms, among others, whose names did not appear at 6:51 this morning when I used this search phrase, leading me to believe that the Google Adwords accounts were edited to add words specifically for this accident while not using the words in the ad itself. (Or this is a Google issue where sometimes stuff shows up and sometimes not.) Here is the pdf:/BuffaloPlaneCrash2%3A13@9-59pm.pdf
- Rosenberg, Minc, Falkoff & Wolff. The firm appears under NY Plane Crash Lawyers (nycaccident.com) and claims to be the oldest PI firm in NYC;
- Masry & Vititoe, a California firm made famous by Erin Brokovich; and
- Injury Helpline Attorney, an attorney search service, which shows what happens to law firms when they outsource their marketing to others.
I discussed this technique of using certain keywords in the Google Adwords system to make the ad pop up, while hiding the actual words from public view, in this post: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified. To actually prove ethics violations here would probably require subpoenas of Google’s records for the accounts due to variations on how Google puts up its sponsored results.
Law firms might come up in the natural results if they wrote about the crash on their web site. Some have a “blog,” and I use that term loosely in this context, that does nothing more than run stories on local accidents. I discussed in December 2007 how such a blog can be used for attorney solicitation. As you will see this presents First Amendment issues. Writing about an event is one thing, but what happens when you tie it in with a solicitation? A story is run followed by “If you or a loved one has been killed or injured…” There are a million shades of gray as to how that is done.
Update #1 – And the first website I have found that hits page one of the natural results (search term: Buffalo Plane crash attorney) is Parker Waichman. Here is the pdf of the search: /BuffaloPlaneCrashAttorney2%3A13@12-43am.pdf
When you follow the link you find a story of the accident right next to a “Free Case Review” for airline accidents. Note that “Buffalo Plane Crash Continental Flight 3407” is in the title bar for optimum search engine results. And that is a great example of how the First Amendment and New York’s anti-solicitation rules clash.
It’s important to note, by the way, that these rules apply to out-of-state attorneys who may try to solicit in New York (only to refer, the case, no doubt, to local counsel). That rule specifically states:
Extra-Territorial Application of Solicitation Rules
EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.
The rule also applies to “agents” of the firms, which to me means any of of the dozens of attorney search services that exist and who might break the rules while doing their marketing. The attorney who hired the firm would not doubt be “shocked” to find such conduct taking place.
I hate writing about this stuff in the midst of such a tragedy. But the brutal reality is that, after the Staten Island Ferry crashed in 2003 killing 11 people, the local paper was flooded with ads coming in that afternoon for the next day’s paper. With the new rules in place, it seems important to take a snapshot of the situation before any ads are run, to see how it contrasts with what will likely happen.
2/16/09 Update: Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?)
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