Lawyer Solicitation: Penn State Sex Abuse Edition

When I started writing, it was going to be about the Philadelphia firm of Feldman Shepherd, and it’s creation of  a web site (link coded “No Follow” so that it doesn’t get Googlejuice) devoted to soliciting Penn State sexual abuse victims, as suits against the school are likely.

I was just about to hit “publish” and question the firm’s ethics. But then I learned of California attorney Michael Bomberger. He and his firm Estey Bomberger don’t even have an office in Pennyslvania, but that hasn’t stopped the firm from hunting for victims.

Estey Bomberger has created a page of their website just for this (chock full of SEO-friendly search terms so that people can find it — thanks guys, consider it found). Their office is in  San Diego, which, according to Google Maps when you punch in the addresses, is very far away.

So what is the Pennysylania hook to lure in the victims, because maybe they haven’t been subjected to enough luring from elsewhere already? It’s here with this statement:  ”Founding partner Mike Bomberger is licensed in Pennsylvania.”

Ummm, yeah, well, maybe. And then again, maybe not. You see, his license is “Inactive.” No, don’t take my word for it. Take the word (or the pixels, in this case) of the Disciplinary Board of Pennyslvania.

Nice, huh? Where I come from we have a word for that. Actually many words. But I’ll just use this one: Misleading. I use that one because I’m being nice.

Hey, maybe his licensing fee check got lost in the mail? Well, his office is still across the country, so that doesn’t really excuse things.

But what if he was close? That is the case of the  Feldman Shepherd firm that I opened this post with.

Is their creation of a website devoted to the Sandusky sex abuse scandal ethical? That is only one of my questions. Because I already answered the other one: Is it professional? And the answer is no. I think it looks scummy, though not as scummy as Estey Bomberger.

Yes? You in the back…I see a hand raised.  No, they don’t teach victim solicitation in law school. This stuff is self-taught, or taught by “the marketing people.”

Does this kind of solicitation violate ethics rules? In New York, I think it would be unethical conduct, with lawyer communications prohibited for 30 days after the incident. (I suppose someone could try to lawyer around it by claiming the incidents were more than 30 days ago, but the Jerry Sandusky arrest was recent and a contrary ruling would defeat the spirit of the rule.)

But this is a Philadelphia firm, and different rules apply. So, not needing to dwell on the intricacies of New York ethics, I called Max Kennerly, he being a Philadelphia kinda guy, to get some background on their ethics rules and local practice. In Pennyslvania, their Rules of Professional Conduct prohibit direct communication, but apparently allow lawyers to chase clients through the mail and by other means so long as it is not “in-person” or by “real-time” electronic solicitation. I presume that “real-time” would mean a text or instant message of some kind, which this stand-alone website is not. This is the rule:

Rule 7.3 Direct Contact with Prospective Clients

A lawyer shall not solicit in-person or by intermediary professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. The term “solicit” includes contact in-person, by telephone or by real-time electronic communication, but, subject to the requirements of Rule 7.1 and Rule 7.3(b), does not include written communications, which may include targeted, direct mail advertisements.

(b) A lawyer may contact, or send a written communication to, a prospective client for the purpose of obtaining professional employment unless:

(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or

(3) he communication involves coercion, duress, or harassment.

So it seems that in PA it is ethical, while elsewhere it may not be.

But is it professional? Does it bring disrespect upon the profession? My answer is yes, as I consider solicitations directed toward a particular incident to be utterly tasteless. Nor does it matter if the advertisements are well-written; it is the concept of the directed ad that I find abhorrent.

One of the first rules for looking for a lawyer is to ignore the stuff you see online. Need a lawyer? Ask friends and neighbors for recommendations. Even if they don’t know the right person, there is a good chance they will know someone who does. For example, I wouldn’t handle a will or a divorce, but I could point people in the right directions. If you are good at what you do, clients will find you. They will find you because other lawyers know you are good and will give your name out as the person to call. It’s called reputation.

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16 Responses Leave a comment

  • George Wallace 2011.11.17 at 18:32 | Quote

    Disappointing, to say the least, to see fellow members of the California Bar behaving so seedily.

    The fine print on that site — “Please contact an experienced Pennsylvania sexual abuse lawyer at [firm] for a consultation on your particular child molestation or sex assault matter” — almost implies that they have a whole stable of such lawyers, just settin’ calmly in San Diego, California, waiting for their chance to fight injustice Wherever It May Occur.

    Shameful, and well calculated to drag down the reputation (again) of the entire plaintiffs’ bar.

  • David Sugerman 2011.11.17 at 23:18 | Quote

    And they’rrrrre off! Who will win the race to the bottom?

    I don’t know either of the firms. But I have to wonder if they try cases or actually have significant experience representing sex abuse victims. Counsel’s integrity matters in these cases. Theirs is lost.

    That said, I have real doubts that disciplinary rules banning this crap survive fed or state con law speech challenges. (I would love to be wrong about that.) The race to the bottom saddens me to no end. Thanks for taking the time to analyze this.

  • Hadley V. Baxendale 2011.11.18 at 20:34 | Quote

    Wait…I’m licensed in MA and CA. My MA license is inactive. Am I not allowed to say I’m licensed in MA? An inactive license just means that you pay the regular dues and your license is switched to active.

    Don’t get me wrong; I find this conduct reprehensible. But the inactive license part is not the part deserving of scorn.

  • Eric Turkewitz 2011.11.18 at 21:33 | Quote

    Wait…I’m licensed in MA and CA. My MA license is inactive. Am I not allowed to say I’m licensed in MA?

    If a lawyer says on his website that he is licensed to practice law in a state, then it implies it is an active license. That is the only conclusion a member of the public could draw.

  • Voice of Reason 2011.11.19 at 13:20 | Quote

    These guys are just trying to drum up biz in a legal market with no biz. Don’t fault them because they were told by the law schools and the ABA that they would be able to easily pay their bills with all the cash lawyers rake in while practicing law. The ABA doesn’t need to even control the spigot, but rather all it must do is regulate the amount of deceptive employment statistics the law schools fabricate. Many solid and respectable investors invested in Enron before the collapse and I suspect that is what happened with these attorneys with the law schools. Now, they are just trying to make a buck on their way to the bottom.

  • John Day 2011.11.20 at 20:18 | Quote

    Why wouldn’t this happen? We have lawyers all over the country who blog about every intersection wreck in the hopes of picking up a case.

    We need an aggressive system of disciplining lawyers who seek out cases in states where they are not licensed to practice. This includes those who advertise, by whatever means, nationally.

  • Howard Quivers 2011.11.21 at 04:21 | Quote

    @John Day

    Yeah, but then that would just lead to more unnecessary criminal trials, and this country already has its fair share of those: http://lawblog.legalmatch.com/2011/11/17/criminal-court-trials-exceed-number-civil-trials/

  • Bonnie Russell 2011.11.21 at 09:17 | Quote

    Wait – wait! You big silly. The rules are different in San Diego. A city at peace with its corruption. Which explains why the about-to-be-disbarred, Patricia Gregory can be arraigned on 11 felony charges of stealing from her clients….and not be arrested!

    See the video. She was pretty annoyed at being held accountable….[Ed. links and other Gregory stuff removed]

  • Ben 2011.11.21 at 11:19 | Quote

    Oh it’s tasteless, but your referral alternative is not any better. Plaintiffs’ lawyers routinely take a third of the win even on lay down cases where suit is never filed. They can do that because their clients have next to no knowledge of the realities of their own litigation. These “advertisements” don’t solve that problem, but it’s at least possible that increased information in the marketplace could lead to cost competition (read: reduction in fees). If you squint, the “reputational” system being pushed in the post looks a lot like cartel behavior.

    If you’re really the better Plaintiff’s attorney, try doing what every other business does: educate your consumer on the product and compete on price.

  • Eric Turkewitz 2011.11.21 at 13:58 | Quote

    Which explains why the about-to-be-disbarred, Patricia Gregory…blah, blah, blah

    Oddly enough, I don’t see anything in my post about any Patricia Gregory, and I’ve removed all your links and other stuff on the subject.

  • Ed 2011.11.22 at 09:23 | Quote

    I think you are being terribly unfair to these guys. They’re just trying to provide a humanitarian service to these people. Trying to insure that these victims get what they deserve. And, they’re only asking for a paltry 40% plus expenses to justly compensate themselves. Most of them will settle anyway.

  • Bonnie Russell 2011.11.22 at 14:31 | Quote

    Well dear editor: How like a publication for attorneys to remove links that demonstrate outright theft from attorneys. (Hand smacking forehead. What *was* I thinking!)

  • Paul M. 2011.11.23 at 16:40 | Quote

    Through accidents of timing and geography I have been admitted in 5 states and went inactive in 2 (Bar exams in 4 states! What fun!).

    There is no ambiguity in any of these states’ Legal Ethics Ops. and one cannot hold oneself out as qualified to practice while inactive. Lawyers ignore LEOs at their peril.

  • Rich Newsome 2011.11.24 at 02:12 | Quote

    Great article. You nailed it: it’s impossible for consumers to find competent counsel online. Some of the poseur PI sites I’ve seen are amazing in their audacity. Guys claiming to be “trial lawyers” who’ve never picked a jury; lightweights claiming to specialize in product liability or wrongful death; it goes on and on. The dilemma is for consumers who don’t actually know a lawyer, or have friends or family who do. For them it’s a mess.

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