Speeding Along to Break Ethics Rules in Gas Explosion (Updated)

Well, that didn’t take long. As I sit here pecking away at the keyboard, firefighters and search teams are swamping the site of a huge gas explosion in Harlem that took down two buildings, killed at least two, and injured many others.

The explosion took place at 9:30. The first attorney ad went up on Twitter within hours. The winner in the race to the bottom? [Updated, name deleted.)  You can see a screen shot of his Twitter feed here to the right [deleted].

And if you can’t read the graphic, here it is in all it’s ugly glory, via his Twitter feed,  @NY_InjuryLawyer:

Were you or someone that you know injured in the #eastharlem explosion? Contact [deleted] at 1-800-[deleted]. #harlem #explosion #nyc

(Update, 3/13/14: The firm has now deleted it from Twitter…see below for explanation.)

As regular readers all know, New York has a 30-day anti-solicitation rule in our Rules of Professional Conduct. It goes like this:

Rule 4.5(a) In the event of a specific 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 representing actual or potential defendants or entities that may defend and/or indemnify said defendants, 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.

The last time I wrote about this was December 2, 2013, when Proner and Proner were running ads after a train derailment in the Bronx.

And at the risk of repeating myself, yes, this is a solicitation within the meaning of the Code because it is targeted to a specific group of people:

Rule 7.3(b)  For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

What I found interesting was that, in the weeks after that accident, I spoke at a seminar on the subject of attorney ethics and solicitation. Incredibly, there was someone there trying to defend the practice of violating an explicit rule on solicitation. His rationale? That there existed some type of generalized duty of lawyers to inform the public of their legal rights.

Let’s be clear on this. Soliciting within 30 days seems to be a pretty clear violation. I can’t foresee anyone being able to lawyer their way around it if called on the carpet by the disciplinary committee.

The only real question is whether the disciplinary committees will turn a blind eye to what is going on.

Update, 3/13/14: I received a call from a very distressed support person for the lawyer — she is in charge of the social media for the firm and is the one that did the tweet. She told me that she posted the tweet without having it reviewed  by her boss, which was her mistake.

I told her that the mistake was not hers, but the lawyer’s, for outsourcing his marketing to a non-lawyer who didn’t know the Code of Professional Conduct, and noted the formula: outsource your marketing = outsource your ethics.

She corrected me, and noted that she was supposed to get approval. Thus, the fault lies with her.

A couple of things worth mentioning. First, I always give brownie points for people that ‘fess up when they’ve made an error. I wish our politicians would do the same.

Second, there were no threats of any kind. It was, in all respects, a very polite request made by phone. She had the voice (and integrity) of the type of person a lawyer would want as a support person.

Finally, I’ve elected to delete the lawyer’s name from the text, and pulled it off the category heading. It is still on the graphic [edit: changed my mind, now that is gone also], but graphics aren’t searchable by Google.

So it now stands as another example of the risks of social media, as well as an excellent example of how to cure a foul up. This morning the firm had lemons. Now it has lemonade.

hat tip: Andy Barovick

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10 Responses Leave a comment

  • Old Geezer 2014.3.13 at 11:20 | Quote

    Suppose the Tweet had only said, “Were you or anyone you know injured in an explosion?” This makes it non-specific, n’est-ce pas? (The coincidence of timing should suffice to the purpose.)

    That should be, IMHO, no more of an ethical lapse than that annoying NY radio advert by the PI firm with hundreds of trial attorneys at your very beck-and-call, and backed by the most annoying ditty ever (for a law firm).

    “Were you or anyone you know damaged, psychologically, spiritually, or otherwise by repeated exposure to an annoying PI law firm ditty on the radio? Contact Old Geezer, Esq, for a free consultation. Bring beer. This is not a solicitation for clients, and in any event, Old Geezer is not legally a lawyer.”

  • Eric Turkewitz 2014.3.13 at 11:33 | Quote

    Suppose the Tweet had only said, “Were you or anyone you know injured in an explosion?” This makes it non-specific, n’est-ce pas? (The coincidence of timing should suffice to the purpose.)

    If there have been any disciplinary hearings, they have taken place in private. I don’t know how they would react when lawyers try to skirt the rules as you suggest.

  • LTMG 2014.3.13 at 14:48 | Quote

    Kudos to the support person for taking full responsibility and subsequent urgent corrective action. That takes moral courage, an attribute in short supply. She will never forget what she learned and will likely instruct others who come after her. Hope the education extends to her boss, too.

  • Old Geezer 2014.3.13 at 17:09 | Quote

    I second LTMG and kudos to Eric for an appropriate change to the post.

    The point about “social media” remains. Why are lawyers tweeting to get clients, whether within 1 day or 31 days? If this had come out on the 31st day would it have been any more acceptable? Is ambulance chasing ok if the only evidence of the ambulance passage is a faint whiff of the dust of its passage?

    I don’t have an opinion. Just throwing it out there. I’ve only felt the need (or the mortgage bank felt the need) for a lawyer a few times in my life and picking one did not seem to be a big issue. The good ones will tell you whether your need falls into their purview.

    We used to have this thing long ago which I think was called “The Yellow Pages”. Now we have Google, which someone has told me “it’s the same thing, just faster.”

    Having said all that, I would these days gravitate toward a lawyer, should I need one, who had a blog worth reading. The heck with Twitter.

  • Michael Chermside 2014.3.17 at 12:11 | Quote

    Never making a mistake is all fine and dandy (and a good thing), but I find one of the truest measures of character is how one responds when a mistake IS made.

    I am impressed with the response of the support person you spoke with, and the entire episode IMPROVES my opinion of all those involved: you (for reporting and thereby fixing the issue), her (for accepting responsibility), and the lawyer she tweeted for (mostly just for being associated with it).

  • andrews 2014.3.21 at 08:59 | Quote

    In fairness, I should first disclose that I neither advertise nor have a listed phone number. I do not do PI. I occasionally google the phone number and ask the sites to remove it or change it to zeroes, but there is no way to stamp it out; the state bar requires it for their information.

    With the disclaimers out of the way, I should like to give some sort of defense for the same stuff I really do not like. Lawyer advertising often seems sleazy, and it cannot help the public esteem of the profession.

    However, the insurance company has no 30 day rule. The 30-day rule for lawyers serves mainly to allow insurance company reps to get in there with low offers and assurances that it will not get better.

    Were the public, including victims of disasters, better informed, the 30-day “low-ball” window might be less important. As it is, sleazy lawyer advertising does serve the good purpose of educating the public slightly about the possibility that the initial settlement is a steal for the insurer.

  • Eric Turkewitz 2014.3.21 at 09:24 | Quote

    However, the insurance company has no 30 day rule. The 30-day rule for lawyers serves mainly to allow insurance company reps to get in there with low offers and assurances that it will not get better.

    Your point is a fair one, but only insofar as pushing the Department of Financial Services (which regulates the insurance industry in NY) to follow suit. Lawyers, as we both know, don’t get to pick and choose which ethics rules we follow if we don’t like some of them.

    But, I would also guess that adjusters aren’t going out there to quickly settle cases without having been first advised by counsel. And those ins co lawyers, most surely come within the rule.

  • andrews 2014.3.23 at 07:32 | Quote

    those ins co lawyers, most surely come within the rule

    Not so sure about that. I think we can fairly rule out solicitation because the ins co lawyer is not looking for clients. He already has clients.

    The question as to 4.5(a) is only slightly more nuanced. If the ins co adjusters were agents of the ins co law firm, then, yes, there might be a violation. But that seems an unlikely fact pattern. More likely, the same ins co that hired the lawyer hired its adjusters, and its non-lawyer adjusters would not seem to be within the rules governing lawyer solicitation.

    It’s not pretty. Such lawyer advertising as we see degrades the public view of the profession. Still, some sort of education has to happen or the ins co will settle for pennies because their adjuster will deliver a good line of banana oil before the victim knows to be skeptical.

  • Eric Turkewitz 2014.3.24 at 16:24 | Quote

    If the ins co adjusters were agents of the ins co law firm, then, yes, there might be a violation.

    I would argue that any advice by a lawyer to an adjuster that encourages the adjuster to approach the victim would subject him/her to the rule. The biggest problem is that New York is super-secret in all things disciplinary, and we have no idea if any such action has taken place.

  • andrews 2014.3.24 at 21:42 | Quote

    Agree, such advice by lawyer to adjuster would violate the rule. I am fairly convinced that such advice is unnecessary, the insurance companies and their adjusters having figured out years ago that they need to rush in with low settlement offers.

    I suppose we could still have a question of whether the insurance company lawyer is obliged to tell the adjuster _not_ to rush out with a low offer. That is going to be a harder argument to make. Compelled speech is subect to some scrutiny. Compelled speech by a lawyer, advocating what is not in the client’s best interest, is certainly subject to some fairly strong debate.

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