August 2nd, 2016

Trump and Lawyers and Privilege, oh my! (Updated)

wells

Thomas M. Wells, photo from his law firm website

I’ve said before that Donald Trump is a one-man bar exam, as his candidacy seems to touch on roughly six bazillion different issues. One could easily create a law blog devoted solely to the legal issues he is involved with that come up on a daily basis — from matrimonial, to contracts, to fraud, to defamation, to torture and war crimes and more.

But today, just for kicks, I’ll tell you how he may have been inappropriately slimed.  Beating up on Trump, you see, is easy pickings. But defending him from inappropriate conduct? You be the judge.

We turn, now to one of his former lawyers, and since Trump has been involved in 3,500 lawsuits, in addition to godknowshowmany banking and licensing deals, there are many of them around.

This one is about Thomas M. Wells, who was hired  by Trump for a New Jersey real estate deal regarding a mall.

On July 31st, he published a nice, juicy article in the Huffington Post with this headline:

Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.

Wah? Inside scoop?  Let’s read!

This was the basic background where Wells establishes his credentials to write with authority:

In 1987, when I was 35 years old and he was 41, Donald Trump hired me to be his attorney on a major northern New Jersey project, a shopping center, which like everything else, was to bear his name, Trump Centre. It was a big deal that he picked me and a high honor for me just a couple of years after I started my law firm, which is now over 30 years old. This was at a time when Trump still built things, having recently finished Trump Tower.

OK, he was one of the lawyers. But what kind of information can he possibly spill if he was Trump’s lawyer? There is, after all, the subject of client-attorney privilege.

Well, off the bat, Wells gets right to it, giving personal stories to lede into the rest of the piece. (The rest of the piece appears to be based on public information.)

First, there is this bit about bad deals, which is odd since Wells was helping him with a deal:

He seemed to me smart, business savvy, decisive. He had a very impressive office, a fancy and very big boat, an airline, a helicopter shuttle and several casinos. Within a few years, virtually all of this would be lost because of bad business decisions.

Second is this piece about Trump claiming that women wanted him:

After the initial interview, my client contact with Donald was actually not very much. One low point I do remember (actually will never forget) is a limousine ride to a meeting with the editorial board of a New Jersey newspaper in which my married client sought to regale me with the number and quality of eligible young women who in his words “want me.” I was just plain shocked and embarrassed, but I kept smiling. I wanted and needed this client happy.

And third, Wells takes on Trump’s well-known braggadocio and lust for publicity in discussing the size of his apartment and the varying press stories on just how big it is:

While I was working for Donald, various press reports had Trump and his then-wife Ivanna living in a personal apartment in the Trump Tower of 8, 16 and even 20 or 30 rooms. Genuinely curious, I once asked him how many rooms the apartment actually had. I will never forget his response to me: “However many they will print.”

Zing! The story confirms your bias against Trump, leaving you wanting to read the rest of the piece for any other juicy tidbits.

But, but, but.

Were those three pieces fair game for an attorney to discuss? Clients, after all, share all kinds of information about themselves. Lawyers often need to know what they are, so that we can represent them the best. Sometimes the information is useful, sometimes it’s garbage.

Wells is licensed in New Jersey, and that state’s Disciplinary Rules of Professional Conduct would control. In this case, it would be section 1.6 relating to confidential information. With few exceptions,  “A lawyer shall not reveal information relating to representation of a client…”

Did any of these three stories relate to his representation? I think it goes against Wells. The comments were made in the course of a client meeting. The client may reasonably expect the such communications would be privileged — even if it is Donald Trump.

I’ve written before about lawyers that want to capitalize on being associated with those in the public eye, such as Lindsay Lohan, or as part of puff pieces. This stuff is almost always verboten.

It seems to be that if an individual can’t keep a secret, then representing clients may not be the right line of work.

I’ve reached out to Wells for comment and he gave this initial response:

The only references made were to conversations approximately 30 years ago, not on business or legal matters and no legal advice was sought or given in same.

There is, of course, no part of the client-attorney privilege that simply expires based on the passage of years. There is no statute of limitations with regard to confidentiality.

As to whether the information must be strictly related to “business or legal matters” or “legal advice,” that is not an easy line to draw. Clients talk, in confidence. And they deserve to know that the confidences will be kept.

Even if a client hires a lawyer to do a closing, and then volunteers in private that she killed someone 20 years ago, or that she cheated on her husband with a few dozen others, I don’t think it means the lawyer gets to blab the stories later. The stories may not be related to the subject for which the lawyer was hired, but were still uttered within the quiet bubble representation.

If you think I’m wrong, have at it in the comments.

Update: Mr. Wells gave me a further comment by email:

 this conversation did not deal with a legal or business matter and no legal advice was sought or given.  There are other issues in this instance as to who the actual client was, who was present etc. but that could be argued to be confidential so I will not go there.

 

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 17th, 2016

Unicorn Sighting in New York

three unicornsGuest Blog by Mike Greenspan
———————–

Another day, another scam. This time it deals with three unicorns.

Frankly, it’s hard enough to be a plaintiff’s personal injury law practitioner fending off the relentless efforts of the “tort reform” movement, the cynicism of juries and the saturation of the market with attorneys. So when lawyers have to face competition from runners; ambulance chasers  and the like, you can understand why so many of us are stressed out.

Today, we bring you our latest entry into our Hall of Shame, a trio of actual unicorns -Jose, Lisa, Mark, Marie and the rest of the gang over at Personalinjuryattorneyrocklandcounty.com.  No, we won’t give this a link.

What? You’ve never heard of them? Funny that you should mention it, because neither had we.

Imagine that you were injured and you were looking for a well qualified attorney based in Rockland County, New York to sue the company you thought responsible. A quick Google search for a personal injury attorney in Rockland County brings up a number of results that unsurprisingly includes personalinjuryattorneyrocklandcounty.com because of the matching keywords.

You click on the site and see a banner inviting you to “Discuss your criminal defense and personal injury legal matters with skilled, experienced lawyers.” What follows is a seemingly impressive lineup of attorneys: Partners Jose Anderson, Lisa Wilson and Mark Thomas have each been practicing for over forty years.

Jose’s biography tells us that he has “ recovered tens of millions of dollars in verdicts and settlements for victims of personal injuries.”  (How exactly does one become a “victim of personal injuries?”)

Glowing testimonials appear on the site such as this gem

From my initial contact with Lisa, I immediately develop huge respect for her. She was explicit with her information, as direct as can be. She explained what you would be up against, what to expect and what not to look out for.

With credentials and testimonials like those, you’d think that the seriously injured in that area would be jumping out of their hospital beds to call and get an appointment with these folks. There are even two offices to contact in case you wanted to do just that.

So what is the issue? Well, there a just a few wee problems that we thought to highlight:

1. New York Law prohibits attorneys from practicing under a trade name.

Yeah it is a bummer that lawyers cannot advertize under a trade name in New York like they do in other states such as Arizona, Florida or Louisiana so you won’t find kickasslawyers.com or “TheArizonaDUITeam” here in the Empire State (Rules of Professional Conduct 7.1 ). So right away, we have an issue with Jose and his buddies doing so in our neck of the woods.

2. New York law prohibits the portrayal of a fictitious law firm. 

That big, fat, no no is right there in black and white in RPC 7.1(c)(2). This so called law firm is fictitious, because….

3. These “attorneys” aren’t licensed in New York.

Really? After all Jose supposedly graduated St. John’s Law in ‘71 and claims to be admitted to practice in New York since ‘72 and has even made it all of the way up to the Supreme Court!

Sadly, this is news to the Office of Court Administration who has no record of an attorney by the name of Jose Anderson nor is there a record of a Lisa Wilson, or a Mark Thomas being admitted to practice in New York – ever. Run a search yourselfand see. We do recall learning about something known as the unauthorized practice of law and how that is generally frowned upon by the authorities. This sure looks like the unauthorized practice of law to us.

When we said unicorns we weren’t kidding — these attorneys simply don’t seem to exist.

100% authentic unicorn poop

100% authentic unicorn poop

4. The registrant of the domain name is hidden

Yeah, that is another problem here because if you have a website in New York, the information is supposed to contain some important information and hiding the owner of the site is prohibited. That hasn’t seemed to bother Lisa and Jose (perhaps Mark, but who knows?). A search on whois.com reveals that the registrant used a service -whoisproof LLP to register the name anonymously. Now why would they do that? Hmm

5. The Phone Numbers go right to voice mail.

Try it for yourself. Call the New City number (845) 335-4345 or the Spring Valley number (845) 520-5075. See if you can in to see one of the trio grande of “ skilled and experienced attorneys .”

So somebody has taken a lot of time and effort creating and editing a website devoted to attracting potential personal injury clients while disguising their true identities. We say editing , because the website has undergone revisions since the summer of 2015 when it blatantly copied sections of text from legitimate websites of New York City area law firms and placed that text in its practice areas. That text and those references are no longer present on the site.

We sure would like to find out…

  • Who is returning the phone calls left on the website’s two phone numbers?
  • Is there someone who goes out and meets with the unsuspecting people who call looking for a lawyer?
  • What lawyer or law firm is signing up these people and undertaking to represent them in court?

 

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)

 

February 1st, 2016

What’s the Most Important Word for a Lawyer?

yes-noLast night on 60 Minutes an advocacy group presented secretly recorded video that shone a very bad light on a group of lawyers. It was a sting operation about laundering dirty money, and this gives you the gist of it:

If you like crime dramas and movies with international intrigue, then you probably have a basic understanding of money laundering. It’s how dictators, drug dealers, corrupt politicians, and other crooks avoid getting caught by transforming their ill-gotten gains into assets that appear to be legitimate.

They do it by moving the dirty money through a maze of dummy corporations and offshore bank accounts that conceal their identity and the source of the funds.

Tonight, with the help of hidden camera footage, we’re going to show you how easy it seems to have become to conceal questionable funds from law enforcement and the public.

Aside from that one exception, 12 out of the 13 law firms, including 15 out of the 16 lawyers… suggested ways that the suspicious funds could be moved into the U.S. without compromising the minister’s identity.

While some attorneys hesitated to accept the bait that was offered, among the 16 lawyers they approached, only one gave an outright “no.”

One of the lawyers was confident about not having any problems, because he said, “We run the country.”

Asset protection and creating corporate entities, of course, isn’t my lawyerly field.  But all lawyers do share one thing in common: Potentially shitty clients. There is no nice way to say it. They may approach you in a multitude of different ways, from poorly thought out cases, to outright scams, to clients that are outright psychotic.

[Addendum: I wrote about a sting operation on personal injury attorneys run out of the Manhattan DA’s office in 2007.]

And so I’m reprinting this piece from 2013, about potentially problematic clients as seen from my perspective. But it applies to all lawyers:

——————————————-

The Most Important Word

The call comes in a thousand iterations. It often looks something like this, with my quick analysis in parenthesis:

My kid was hurt on the playground. Is there anything I should do? (Parent wants to know they did everything possible for the child.)

Could my spouse’s disease have been treated earlier? (Spouse wants to know they did everything possible.)

Someone said mean things about me on the Internet that are defamatory, can you help me? (Rage, often justifiable.)

That car ran a light and almost injured me. (Almost doesn’t count.)

You know where this is going, right? Lawyers that work on contingency receive all kinds of calls; they may be from the “how much is this worth” crowd, but quite often the motivation is emotional, not financial.

The word every lawyer needs to know is this: No. Say it out loud, say it again, say it often.

Part of the reason is because taking poorly vetted cases will drive the lawyer to bankruptcy. But also important is to save the potential client from themselves. A few minutes explaining the Streisand Effect, for instance, may make perfectly clear to the potential defamation litigant why that cease and desist order may catastrophically backfire.

When the injured person is a child, saying no isn’t particularly easy. Especially when you have your own and can truly empathize. But the ill-taken case will almost always lead to disappointment, making not only your situation worse, but theirs.

Interestingly, the most common response to the the word no is gratitude. The potential litigant simply didn’t know what was involved or how things worked or called because a friend insisted, or simply needed to know that they did all they could under the circumstances. Most people are appreciative when a clear response comes back.

I’m  asked, every so often, if I could be a juror in a personal injury case.  Defendants would no doubt want to boot me from the jury ASAP assuming I would be overly sympathetic and would have a tough time saying no to an injured litigant. But that would only be because they don’t know how much experience I have at turning people away.

No is the most important word. Use it and use it often.