September 20th, 2016

Chasing the Hearse (Updated)

romauldmioduszewski

Romauld “Ron” Mioduszewski. Photo from Century 21 Supreme Realty website.

Way back when, I remember hearing dark humor about how to find an available apartment in NYC: You check the obituaries.

And in The Verdict, Paul Newman’s character does a similar thing — he shows up at a funeral to offer his attorney services to the widow.

And now, courtesy of a Century 21 Supreme Realty real estate agent, we get actual documentation of this in practice.  For reals.

Back in June, Michael Popper of Plainfield, NJ had a horrible kayaking accident that cost him and his guide their lives when a front came in followed by waves that capsized them. His wife Jennifer, now a widow, was involved in the same accident and clung to her kayak for hours in the 52 degree water before rescue.

It’s the stuff of nightmares.

century21supremerealtyBut Century 21 Supreme Realty agent RomauldRon” Mioduszewski, (link) of Cranford, NJ, decided this was a good financial opportunity. For him. So he sent Jennifer Popper a letter, starting with faux-condolences, followed by a pitch for his business.

If this was a one-off type of event, I might not bother to write about it, as it does stray from my legal wheelhouse. But this could not have been an isolated letter.

And the reason I think it wasn’t an isolated letter is because it was a fill-in-the-blanks form letter. And Mioduszewski didn’t bother to fill in the blanks.

That’s right, adding insult to tragedy, he dropped in the mail a letter that started like this, with my notes in brackets:

Dear Jennifer:

I would like to start this letter by offering my sincere condolences on your recent loss of [name not filled in] . Losing a loved one can be a very difficult and stressful time. This letter can be compounded when you start to receive numerous letters from investors looking to purchase the property, located at [address not filled in] and you are unsure as to what options are available to you. Having experienced this situation myself, I can sympathize with what you are going through. The main point of this letter is to make  you aware that.

[Sales pitch follows]

That’s right, he didn’t even fill in the name of her husband for his “sincere” condolences. He blamed others for the “numerous letters from investors” of which he was actually trying to be one. And he claimed to have “experienced this situation myself,” but it is beyond belief that any human who had experienced such trauma could actually send such a letter.

Jennifer posted the letter on Facebook, and then responded yesterday on the Facebook page for that realty office:

Dear “Ron” Mioduszewski – I’d like to start this Facebook post by saying you’re no better than the investors of whom you claim to warn me. By the way, you could have easily found out the name of the person you were offering condolences about instead of writing absolutely no name at all. Pathetic.

The questions to ask here are:

  1. How many such letters did he send?
  2. Who drafted it?
  3. Was this an office-wide practice?
  4. Is this typical of the Century 21 business?

I reached out to Mioduszewski for comment but he wasn’t available. If he responds, I’ll update. (Updated now, below letter)

But inquiring minds want to know the answers. The letter, is here, in all its wretched ugliness:

century21letter-popper

Updated:  Mioduszewski  called me back. He said he created this form months ago and uses it “on all my probate matters,” sending it twice to each home. He said he didn’t know how many times he had sent it out, and that he was the only one in the office that used it.

Mioduszewski  also told me that the letter going out this was was a “computer glitch.”

He defended the use of the letter, saying that this was a service he provides. When asked how he would have felt if he had been in a similar situation and received it, he said that, “being a real estate agent, I would have just blown it off.”

He said nothing about having “experienced this situation myself,” as he claimed in his letter.

 

May 26th, 2016

Hulk Hogan’s Ambulance Chaser

Terry Bollea, aka Hulk Hogan, takes the oath in court during his trial, via Reuters

Terry Bollea, aka Hulk Hogan, takes the oath in court during his trial, via Reuters

The story of ambulance chasing after the Hulk Hogan case is buried 22 paragraphs into the New York Times article. But that is where I am going today.

As many of you know, Terry Bollea (a/k/a Hulk Hogan), sued Gawker over the release of a sex tape that was made with the wife of his (former) good friend. The jury came back with a whopping $140M verdict.

There were two pieces of news on the case: First, the trial judge didn’t reduce the damages. Nor was the case tossed out on First Amendment grounds. Both of those issues, for sure, will be on appeal, though Gawker must post a $50M bond to get there, which may bankrupt the website.

But that news is well covered elsewhere. So too was the news that Silicon Valley billionaire Peter Thiel was bankrolling the lawsuit. Thiel, it seems, has a personal vendetta against Gawker dating to the time that it outed him as gay on its Valleywag blog.

Don’t worry, I’m going to get to the part about the ambulance chasing, just as soon as I finish bringing you up to speed on motivation:

From yesterday’s New York Times, where Thiel gives his first interview on the subject, he said:

“It’s less about revenge and more about specific deterrence,” he said on Wednesday in his first interview since his identity was revealed. “I saw Gawker pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection with the public interest.”

Mr. Thiel said that Gawker published articles that were “very painful and paralyzing for people who were targeted.” He said, “I thought it was worth fighting back.”

OK, and from motivation we move on to funding lawsuits. Litigation finance is big business as it may be difficult (or impossible) for clients or lawyers of modest means to bring suits without being able to pay experts and other costs. They are generally frowned upon by lawyers as a last ditch effort to continue, due to the very high financing charges. But if needed they do level the playing field when litigating against insurance companies and other well-financed companies.

These finance companies come in at the request of counsel.

So the New York Times finds it important to get a couple of law professors (at least one of which has apparently never set foot in a courtroom or even been admitted to practice law) to dutifully quote in order to make it looks like “experts” have weighed in:

“If you really do have concerns about the merits of this case, finding out who bankrolled it doesn’t really help you at all,” said Mary Anne Franks, a professor at the University of Miami School of Law. Absent any indication that there is something unlawful about how the funding took place, she said, “you would still need to show that there’s something substantively wrong with the ruling.”

But Thiel was a different sort of financier — he went looking for the client.

Thiel tells how he solicited the case, and claimed this was normal:

He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.

A couple things here: First, this is not “very similar” to how a plaintiff’s lawyer on contingency works. Because what he did is solicitation, and the vast, vast majority of lawyers do not contact victims. Solicitation is ambulance chasing.

The second issue, and the reason I write today, is that there is a parallel here to the issue of non-attorneys owning part of a law firm, a matter that has been discussed in various jurisdictions (and which is, thankfully, not allowed in New York).

Non-attorneys owners, after all, are only needed for their money to fund cases and overhead.

While profit is not the motive for Thiel in the Hulk Hogan case (he positions this as a public interest lawsuit), this case is an outlier. But this particular outlier, has important lessons.

This particular funding case — where the funder solicited the client —  is an example of what will happen if you allow non-lawyers to have ownership of law firms. They will solicit. When the plane goes down, when the bus crashes, when the horror hits the front page, the non-lawyer owner may go hunting for business. I wrote about this twice before, both in 2011:

North Carolina to Allow Non-Lawyers to Buy Interest in Firms? (Lousy Idea)

Jacoby & Meyers Sues To Sell Themselves to Non-Lawyers (Lousy Idea)

While New York has a 30-day anti-solicitation rule after a mass disaster, non-lawyers are not bound by Rules of Professional Conduct. And if they we allowed non-lawyer ownership, and they were told to comply with the Rules, what happens when they violate it? Disbarment? The non-lawyer does not lose his livelihood. And his lawyer partners would no doubt say, “Oh my lord! We had no idea!!!” And like that, an intentional ethical violation is downgraded to mere negligence.

So Peter Thiel, in his solicitation of Hulk Hogan, shows the potential future of law if non-attorneys are allowed in the door to own parts of law firms: They will have a vested interest in getting the case, and their solicitations will be to the detriment of the bar’s reputation and the public’s faith in the justice system.

If/when someone feels the need to reach out for counsel, there are plenty of ways to do it. But reaching in, while a family is in shock or grieving, is a recipe for inviting in hustlers and con artists, and seeing people victimized a second time.

 

 

 

February 6th, 2016

Ambulance Chasing the NYC Crane Collapse, Via Baton Rouge [With Greek Chorus!]

TwitterOn Friday a construction crane collapsed in Manhattan that was dramatically caught on video, killing one and injuring others. And within hours, a law firm was boasting that it had a lawyer “on scene.” I shit you not. [Uh oh, someone is gonna get filleted and fricasseed, I can smell it coming!] From a legal perspective, it was quite the interesting show the firm put on.

Now if I don’t write about such a naked case of ambulance chasing here, who will?

…Entering, stage right, the Fisher Injury Lawyers [golf clap] apparently based in Baton Rouge, Louisiana, and led by Bryan and Tommy Fisher. [Cool! Will this be our latest contestant on How To Embarrass The Legal Profession?] 

This four-lawyer firm also claims offices in Texas and New York. The New York firm is staffed by a puppy lawyer admitted to practice in 2014. [Huzzah, huzzah!]

And awaaaay we go….Breaking on Twitter:

Fisher Injury Lawyers on Scene of New York Crane Collapse.

[Lawyers on the scene! No way! Often the actual chasers are “investigators,” so the chuckleheads can try to cover their tracks! These guys are awesome! No subterfuge!]

WebsiteAnd not just Twitter. Oh no. Not in the age of social media. Also on Facebook. And their website. And LinkedIn. The Fishers seem to have covered all the bases.

Except, of course, for that one little base that deals with New York’s anti-solicitation rules, which the Fisher Injury Lawyers of Louisiana seem to violate. [Oh no!  I bet they didn’t see that coming!]

You would think that if lawyers were going to open a New York office and put a young attorney in there they would at least be familiar with our rules of professional responsibility on advertising and solicitation, right?  [Hey, wait, I’m noticing a bit of snark here!]

These rules are, essentially, the very definition of ambulance chasing, a subject that I’ve written about many times before. [I wonder if the Fishers have ever read any of those pieces? I kid!]

A short review if you are reading this blog for the first time :

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…

[Hey! Maybe they thought it was a 30-second anti-solicitation rule?  Simple misunderstanding! Could happen to anyone!]

When I wrote about this in December 2, 2013, it was Proner and Proner that was running ads after a train derailment in the Bronx.

FacebookAnd at the risk of repeating myself [Take the risk! Take the risk!], soliciting by sending a lawyer to the scene and with targeted ads on a website, Twitter, Facebook and LinkedIn, seems to me to fall pretty damn squarely within the meaning of the Rules to be solicitation as this is not generic advertising but targeted to a specific group of involved people.

[Oh no, this is getting ugly, these guys are going to win a prize for sure! I hope, for their sake, there isn’t another legal cite!] So here is the cite for the definition of solicitation:

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…

LinkedInFisherLawyers-croppedThe initials of the young lawyer who apparently went to the scene are C. T., but because he’s so young and I presume doing the bidding of his boss, I elected not to use his name. [I can see it in the graphic! I can see it in the graphic!] Admittedly that’s a close call, since he should know better anyway. It’s a good example, though, of a lawyer that must learn how to say no. [You didn’t name him in a Google-friendly way?!  You’re getting soft!]

It’s also worth noting that out-of-state lawyers are bound by our code of professional responsibility (Rule 7.3(i)):

(i) The provisions of this Rule shall apply to a lawyer or members of a law firm not admitted to practice in this State who shall solicit retention by residents of this State.

[Is this the part where Bryan Fisher says, “Oh shit!!!”?   I’m sure he won something for this escapade!]

Now what would happen if Fisher Injury Lawyers should somehow procure a client by this chasing (and then, perhaps, flip the case to local counsel in exchange for ⅓ of the fee)? The answer, I think, is that a judge could/should take a close look at those Rules, and assuming that judge agrees with me, take away any legal fee as one can not profit by violating the Rules. [Oh man, if that happens he’s gonna need a tushy doctor to repair the new hole!]

As for any local counsel that should be contacted about a referral (in any case), one of the questions we should always ask is, “How did you get the client?”  There are no doubt many that would turn a blind eye to the original source, but the source of clients is a recurring problem not only with newfound referring attorneys, but with the hordes of “find a lawyer” sites that may be using unethical black hat techniques to procure “leads.” [You mean one of them might one day need a tushy doctor too?]

It’s a good time to remember that ethics and marketing are in a deep embrace. Lawyers must be careful who they climb into bed with, because outsourcing your ethics is a communicable disease — whatever vice your agent commits for the business falls to you also. Such is the nature of agency.

Does anyone want to be the test case in the Appellate Division for lawyers outsourcing their marketing (and ethics and reputation) to others? [Hands?  Hands? Can I see a show of hands?]

It’s also worth noting that any firm with even a basic knowledge of New York practice would also know that you can’t use a trade name like “Injury Lawyers” (Rule 7.5(b)).

But really, the core of this is ambulance chasing. [Ya’ think?] I bring up the other issues only in the context of some lawyers believing it’s OK to just waltz into other jurisdictions without really having a clue as to how they actually operate.

I contacted Bryan Fisher for comment on Friday, the day he published his advertisements — using Twitter since that is one of the social media platforms he elected to use [Nice touch!] — and he has not yet responded:

Request for Comment

And so, into the Personal Injury Hall of Shame I hereby induct the Fisher Injury Lawyers, based primarily in Baton Rouge, Louisiana,[Winner! Winner! We have a winner!!!] for its sterling effort to drag the legal profession down into the muck. And having the public (jurors) think even worse of us and our clients than they already do. [Aha! So that’s why you’re writing about them!]

And if they happen to be reading this [Oy vey! Are they gonna be pissed at themselves for having done this!], you guys have four things to hope for:

  1. Everyone is talking about the Super Bowl and doesn’t give a damn about this;
  2. New York’s disciplinary committees simply don’t care about enforcing the 30-day anti-solicitation Rules, and are more interested in Lady Gaga botching the lyrics of the National Anthem by swapping out “gallantly streaming” for “valiantly streaming;”
  3. This blog was so poorly written due to all the Greek Chorus nonsense, that no one took its underlying message seriously [Hey! You wanna complain, blame the casting director!]; or
  4. This blog is so poorly read by others that the issue never comes to their attention.

(hat tips to Gerry Oginiski and Samson Freundlich)

 

May 15th, 2015

Chasing the Amtrak Crash

MyPhillyLawyer

Dean Weitzman from “My Philly Lawyer”

You have seen this act before, dear reader, but perhaps never so blatantly. It’s the lawyer who chases the mass disaster crash, a/k/a the ambulance chaser. It’s the lawyer that, by doing so, smears the names of all others in the lawyering profession.

Today’s story comes up because Dean Weitzman, managing partner of the Philadelphia firm Silvers, Langsam & Weitzman, decided it would be a swell idea to send out a press release to the local press letting everyone know that they would be accepting cases from the Amtrak crash. (Which is not an “accident” by the way).

He wrote, among much personal agrandizement, that is firm would be:

available to provide representation for victims and injured persons in last night’s Amtrak derailment in North Philadelphia.

Gee. Ya’ think?

And he also wrote that:

Dean Weitzman is also available to media outlets to give analysis and discuss what happens next.

The firm is, as I understand it, (in)famous for slathering Philly with its ads, using the moniker My Philly Lawyer.

It was exactly this type of grotesque chasing after cases that led New York to create its 30-day anti-solicitation rule (and I presume to a similar federal 45-day rule for airline disasters). In the immediate wake of the 2003 Staten Island Ferry disaster that killed 11, some lawyers ran to the Staten Island Advance to place ads for the next day.

But there were still bodies on the boat when many of them did that.

This type of wretched behavior has repercussions.  I see it when I step into the jury room to select, as do others in the profession.  Calling the jury pool cynicism deep would be an understatement.

If the cynicism came solely from insurance company propaganda, it would be one thing. But when the smear comes from your own ranks, then what? Then it becomes the obligation of others in the profession to express their contempt for the practice and issue a complete disavowal of the conduct.

Let there be no mistake about my position here: Dean Weitzman and the firm of Silvers, Langsam & Weitzman do a grave disservice to the cause of justice and to those who have been injured. By chasing ambulances in this fashion they perpetuate an ugly stereotype, whose ramifications are felt not only by members of the bar but more importantly by those we represent.

As I noted back in 2009 in a short analysis of anti-solicitation rules, they do work. In honor of the chasing that Weitzman is doing, it looks like time for Pennsylvania to follow suit with an amendment to its rules.

Since Dean Weitzman said he was “available to media outlets to give analysis and discuss what happens next,” I’ve sent him an email seeking comment about the appropriateness of sending out such an email within 24 hours of the crash, when all of the passengers aren’t even accounted for. If he elects to respond I may amend this post.

(Hat tip, Max Kennerly)

 

 

March 12th, 2014

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