May 15th, 2015

Chasing the Amtrak Crash


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)



May 4th, 2015

Lawyers and the Press. Again

GellerLawGroupI hate to pull the stuffings out of this article from the New York Times about women lawyers trying to manage both family life and a solid law practice. It was a lovely, fluffy piece of lifestyle journalism.

The women at the Geller Law Firm, it seems, have based their practice around making sure that they don’t lose sight of the other important things in their life, also known as children.

To do this, they cut back on hours, or make them really flexible, work from home or temporary offices, and focus most of the practice on non-litigation matters such as trusts and wills and small business incorporations. And “[T]he partners limit their litigation business because court appearances and filing deadlines mean less control over their schedules.”

According to the piece:

the founding credo of which is family-friendliness and whose stance on office face time is best described as “militantly against.”

You know what? If they can figure out a way to make the model work, then more power to them. If a group of people, for example, only want to work 30 hours a week, and take home less pay and have fewer clients, no problem.

So long as the clients aren’t affected.

But the article needed a little color. Someone decided it would be nice to have an actual client involved in the cuddly, little piece.

The problem with including a client, of course, is the risk that something will be said about an actual piece of litigation, so you would expect something very benign, such as “I think they are awesome and have no problem with the limited hours and they always get back to me when I call and they are awesome, and I said awesome twice because I really, really think so.” You know, like that.

But that is not what happened, so this is where the stuffings get pulled from the sweet teddy bear of a feature piece.

This part just leaped off the page at me, as confidential communications were exposed in front of the Times reporter:

By 10 a.m. on that Wednesday in March, Ms. [Maria] Simon was seated in front of a client, formerly the president of a condominium association that was now suing him. (The client gave me permission to sit in on the meeting.)

Ms. Simon began to review each count of the civil complaint against him, MacBook open and legal pad at the ready. She had a litigator’s game face that was only occasionally undone by a wry smile she couldn’t quite suppress.

“I have to ask,” Ms. Simon said at one point. “Did you ever falsely represent yourself as an attorney?” The client explained that he had once told a local agency that he was appearing before it as an attorney but that he had meant it “in the British sense,” in that he had power of attorney. “You know you’re not supposed to say that, right?” Ms. Simon deadpanned.

“Yes, lesson learned,” he said.

For the non-lawyer readers, let me explain. What lawyers and clients say between themselves is privileged. But when a third party, unrelated to the law firm, comes into the room, the privilege evaporates. Gone. Up in smoke. At a deposition opposing counsel can ask about every single thing that was said in front of this other person.

Lawyers see this potential problem with some regularity, though not with reporters as the third wheel. Often a friend will accompany the client to the office. And when that happens, it’s the job of the lawyer to exchange pleasantries with these friends and explain to them what a privilege is, and why they can’t come into the conference room, and offer them coffee and a newspaper as they sit in the waiting room.

Why the lawyers at Geller decided it would be wise to have a confidential meeting in front of a reporter is utterly beyond me. And why the lawyer would ask in front of a reporter, “Did you ever falsely represent yourself as an attorney?” is simply bizarre.

Saying that this was not a well thought out interview from the lawyer’s perspective is, I think, a significant understatement.

This is not the first time I’ve written on this subject, where it seems that the desires of the lawyer for press have superseded the best interests of the client.

We saw this just a couple weeks ago with South Carolina attorney David Aylor, who was representing police officer Michael T. Slager, who happened to fire 8 shots toward the back of Walter Scott, killing him. Aylor didn’t just jump ship after seeing the video, but worse, told the world just hours later that he was jumping ship after seeing the video. Because apparently Aylor comes first, not the client.

And we saw this a few years back with Chicago criminal defense attorney Stuart Goldberg, who interviewed with Lindsay Lohan about representing her, and then opened up to People magazine about her “fragile” state. But confidential means confidential.

What should the Geller client expect? That his admissions in front of his lawyer may now be an issue, that everything said in front of the lawyer is no longer confidential, and that the lawyer might actually now be a witness to the admissions, and be unable to handle the matter due to a conflict.

That is one hell of a mess, if you ask me. And I don’t know how anyone can say it benefits the client.

This isn’t to say that all client interactions with the press are bad. But going into them, there must be long and thoughtful discussions about exactly what is fair game to speak about, and what isn’t, and how/why it helps the client.

I reached out yesterday by email to the lawyer involved and she did not yet get back to me.



April 9th, 2015

Enthralled with the Press

DavidAylorScreenGrabDid someone drop an extra dose of stupid in the drinking water of Charleston, S.C., attorney David Aylor?

If the name doesn’t ring a bell, let me attach it to an incident: On Saturday in North Charleston, police officer Michael T. Slager shot dead a citizen of that city, Walter L. Scott. Slager claimed that he stopped Scott for a broken tail light and then shot and killed Scott when Scott tussled for the officer’s Taser.

Aylor was the criminal defense lawyer for the cop, and said he believed that Slager followed the proper procedure.

But then a video surfaced that showed Slager shooting the unarmed Scott as he was running away. It looks like little more than an execution as he shot eight times at the back of the the fleeing Scott, hitting him five times.

Slager was arrested for murder. And his lawyer — Aylor — dumped him.

But Aylor didn’t just dump him. No, sirree. What he did was dump him publicly, thereby implicitly violating the attorney-client privilege and calling his client a liar. Lawyers don’t do that.

Lawyers don’t get hired for the purpose of violating confidences. If Slager lied to his lawyer in private about the facts, that is between client and lawyer, and nowhere else.

In response to being swamped with press calls after the video came out, Aylor could have said two things. First, he could have said “no comment.” Period. End of story.

Alternatively, if he was sick of being bombarded by press calls, he could conceivably have said that a change in counsel was in progress, and he obviously couldn’t say more. No one would know why. There are plenty of reasons for a change in lawyers, and few would think anything of it.

But instead, Aylor gave an interview to the Daily Beast. And after superficially claiming that he couldn’t discuss the matter, then proceeded to piss on the guy that came to him for legal help:

I can’t specifically state what is the reason why or what isn’t the reason why I’m no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.

So there it is, he told the world that

1. He was the one dumping the client; and

2. That he was dumping the client right after seeing the video.

In other words, I think he called his client — to whom he owed a duty as an attorney —  a liar, since the video likely didn’t match the story he was allegedly told. There is no other way I can see this.

And in case anyone might think this was a single, moronic slip of the tongue, he did it again later in the interview:

I think that there’s been a release of information that was not public information at the time, or not discovered at the time at least to any knowledge of mine or anyone else publicly— at least the video. I can’t comment on the specifics of what I think the video says. I’m not going to analyze the video, but again … the video came out and within the hours of the video coming out, I withdrew my representation of the client.

So Aylor intentionally threw his client under the bus.

Now his client may be a murderer, and may be a monster and may be all sorts of mean, nasty things about which you will see protests in the coming days/weeks/months.

But the lawyer’s allegiance is to the client that came to him for help. If clients can’t speak to lawyers about problems then they can’t get the legal assistance they need. We have that lawyer-client confidentiality code for a reason. And it doesn’t get violated just because the lawyer suddenly has a reviled client.

Aylor was completely unprepared for the press. When he should have said nothing, he gave this comically contradictory answer to a simple question:

How did you come across the video?

I can’t say where I saw it first. I first became aware of it via the media. In fact, a reporter sent it to me via e-mail.

Did he think that talking to the press was going to be a neat bit of self-promotion so that the could add another little line to his website about all the press he has been in? Methinks that is going to backfire big time, as I think most lawyers are appalled by what he did, and some of them just must might want to write about this.

This isn’t the first time I’ve written about a lawyer disclosing confidentially obtained information in a high profile case. I wrote about this five years ago when one of the lawyers being interviewed by Lindsay Lohan for a criminal defense thought it would be great to get some free press for himself by blabbing to the press about his meeting with her.

Incredibly, there is actually another comic note to all of this. It seems that Aylor put a video on You Tube boasting about being named the top lawyer in Charleston by City Paper (an alternative free weekly).

Don’t ask me how such a stupid survey could be done, but here’s the kicker: Aylor posted that little boast of being best on April Fools Day.


The Unwashed Advocate: an interview to the Daily Beast as an aggravating condition necessitating elevation to Interstellar Capital Dipshittery.

Simple Justice:

What could Aylor possibly have been thinking when the Daily Beast called and said, “talk to us, bro. It’s gonna be sweet!”  The only rational conclusion is that he saw his 15 minutes of fame coming to an end, and wanted to get his brand in there before the name David Aylor disappeared forever.  This was an opportunity to spin his involvement from lawyer for the devil to good guy who wouldn’t be caught dead standing beside the murderous liar.

Noah Feldman @ BloombergView:

[Aylor had] an ethical obligation as a lawyer to defend his client, not to abandon him or harm him by a public act of distancing. Yet in an interview with the Daily Beast, Slager’s lawyer did just that, dropping his client like a hot potato and strongly implying that Slager either had been set on a course of perjury or was simply too repulsive to represent.

It’s hard to avoid the implication that Slager hadn’t told his lawyer what really happened, and that lawyer withdrew at least in part because he thought his client had misled him.

Gamso for the Defense:

OK, yeah he essentially rolled on his client.
Yeah, he violated attorney-client privilege in substance if not in form while denying that he was doing that.
Yeah, he made an ass of himself in public, but that’s what comes from media whoring when there’s nothing to back…

Updated 11.11.15: Did Aylor really cut and run? Or was there another reason…


December 3rd, 2014

“& Associates” as an Ethical Violation Gets a Courtroom Visit

Ethics-700970-774132Five years ago, when Sonia Sotomayor came before the Senate Judiciary Committee for confirmation, she released a questionnaire that gave her legal history, and she revealed that she once had a firm called “Sotomayor & Associates.” The problem? There were no associates.

Oops. I wrote the piece up within a few hours of the document’s release, describing it as a one of the less serious pieces of misleading advertising that take place, but a violation nonetheless.

And there the post sat for a couple weeks until the Washington Times picked it up in an editorial. And then the New York Times did a big story on it (without attribution to me, thank you very much) a month after I did, complete with White House response.

But the most curious part of the episode was the White House claim that this wasn’t an ethical violation, raising the issue from an “oops” to a full-blown kerfluffle. They actually paraded out a defense of the clearly misleading practice by offering a written analysis by Hal R. Lieberman, a former disciplinary committee chief counsel in New York:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Lieberman was dead wrong, in my opinion, and I called this a lousy defense.

Well, the answer is now clear, for any lawyers that thought they could get away with puffing out their firm names to make them look bigger than they actually are. Yesterday the Appellate Division, First Department censured a lawyer over the use of “& Associates” when he had no associates; he was a solo practitioner (Matter of Cardenas).

To be sure, this was the least of the transgressions committed in the censure that took place, with the big issue being the apparent deliberate commingling of funds. For the non-lawyers that may be reading, that means the lawyer borrowed money for his own use from an attorney escrow fund where it was supposed to sit segregated.

But mixed into the panoply of charges was this clear and unmistakable bit, for violating:

Rule 7.5(b) (using business cards and letterhead listing his law firm as “Cardenas & Associates,” when, during the period at issue, he did not employ any associates)

It is highly doubtful a lawyer would be censured for this alone. But the rule is nevertheless clear. It is misleading to call your firm “& Associates” when there are no associates. And if the White House or any other authority tries to tell you otherwise, there is now a decision to point to.



May 22nd, 2014

You want me to violate what law?


Who’s hiding behind that Google ad?

It isn’t often that someone emails me out of the blue and asks me to commit a misdemeanor. So I guess this wasn’t just another day.

Welcome to another edition of:   outsource your marketing = outsource your ethics. Today, perhaps, we can add to that equation that you might end out surrendering your money, license and liberty as well.

The email came to me from a Utah digital marketing firm called Lead PPC, from its CEO Grant James. I get pitches from marketeers all the time (“first page of Google!!!”) and generally just delete before reading, but I look sometimes to see if there’s any new scam under the sun.

The pitch was simple: The company would use the names of other personal injury attorneys as keywords for Google and my name would pop up in an ad. In other words, they want me to trade on the names of my “competitors” (a/k/a friends and colleagues).  This was the emailed pitch:

By staying away from the expensive $100+ cost per click keywords, we get right to the good stuff that is cheap, targeted, and needs help now.  Mostly, people are searching for the names of your top competitors who are advertising on radio, tv, and billboards.  We show up above them on Google and Bing, and they call us instead of them.

Whoa.  Now I may not always be the sharpest knife in the block  — just ask my kids —  but I do know that trading on the name of someone else is, what we call in legalese, a big, fat, hairy, ugly no-no. This is New York’s Civil Rights Law §50, also known as the right to privacy (and elsewhere, in various forms, the right to publicity):

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

And in Civil Rights Law §51, there is a private right of action, and this includes both compensatory and punitive damages. In other words, I could be sued by the people whose names I’ve appropriated. And unlike other suits against me, this one could actually have merit.

In addition to the prospect of criminal and civil problems, there is also the prospect of action against my license under the Code of Professional Responsibility for false and deceptive conduct (Rule 7.1(a)(1)), implying that the better-known lawyer is associated with my firm (Rule 7.1(c)(2)) and using “hidden computer codes that, if displayed, would violate these Rules” (Rule 7.1(g)).

Grant James - LeadPPC

Grant James, CEO of LeadPPC

Figuring  that my understanding of what he suggested might just, perhaps, be the result of a poorly written email, or maybe that I didn’t understand the technology, I replied to Mr. James seeking clarity:

Hi Grant.

I read through your email and didn’t understand something:

Mostly, people are searching for the names of your top competitors who are advertising on radio, tv, and billboards.  We show up above them on Google and Bing, and they call us instead of them. 

What does this mean?

Simple enough, right? But his response was to make clear that I had it right the first time, that this was a dishonest, misbegotten, bastardization of legal marketing. He responded by giving me the names of prominent Texas trial lawyers he had misappropriated:

Hey. Yeah sorry if this was a little vague or confusing.

An example would be like in Dallas and Houston where we spend most of our budget on terms related to Jim Adler, Brian Loncar,, radlaw, and other terms for competitors.

What happens is that people hear a radio commercial and they can’t remember the website, so they search for what they can remember about the lawyer.

So if a guy searches for Brian Loncar, we know that they were most likely in an accident. If we rank for #1-2 on PPC, especially mobile, they click on us and call in.

A prospect typing in the name of a competitor term as opposed to “personal injury lawyer” is a much hotter prospect and further down the buying path. Additionally, these terms are much cheaper and less competitive than the broader terms everyone is bidding on and pushing up the prices.

The strategy works best in larger cities where law firms are advertising heavily on radio, tv, etc.

Texas, we have a problem.

Leaving aside the marketeer for a moment, what lawyer would do such a thing to another? I wanted to know, but since I’m in New York the Google ad words didn’t pop up in my market when I searched.

But, funny enough, I happen to know ace Dallas criminal defense lawyer blogger Mark Bennett. And Mark has written his fair share of postings about shady marketing tactics.

Screen Shot 2014-05-21 at 11.20.02 AM

So he Googalized those more prominent names that Grant James had kindly told me he had misappropriated, and up popped the website ( of attorney Ben Abbott in the Google ads.  You can see one of the to the right, where Brian Loncar was Googled. Bennett has screen shots of others.

You will notice that Bennett searched only for the name, and didn’t add lawyer, car accident, or any other popular buzzword.  Just the name. And up pops Ben Abbott’s ad.

As it happens, swiping the name of another person in order to exploit it is also a problem in Texas. It sure looks like Ben Abbott can be sued, and I’m guessing Grant James and his SEO company as well.

Now I’m also going to guess, simply because I fancy myself a kind and beneficent person, that Grant James is utterly ignorant of the law. I think I’m being charitable when I wrote that he probably knows that swiping the names of others to trade on them is a pretty scummy black hat tactic, but that he doesn’t know the legal ramifications. Or he knows but just doesn’t care.

But what would be the excuse of attorney Ben Abbott?

While I know that black hat marketing techniques go on, and have written about them in the past, I never really guessed it would come at me in such a bold and obvious way.

Who, I wanted to know, would he target? So I asked and he responded:

I would need to work together with you to put together a list of 15-20 of the top competitors in NY.  It would be the same guys who advertise on radio, tv, and billboards.

So then I moved the conversation to problems with his scheme, with a nice open-ended query to get his thinking, to see how he could justify this:

I don’t know, Grant, the whole thing about using the names of other lawyers to promote myself doesn’t really sound kosher.

What came back was a very long email about how Google operates and what Google allows and doesn’t allow and Google this and Google that, as if Google was a law of some kind and could be waved in front of judge and jury as a defense.


Ben Abbott, Texas lawyer

To Ben Abbott, who should know better, I asked:

Mr. Abbott:

I’m writing an article about your using the names of other Texas trial lawyers as part of your advertising. This includes Jim Adler and Brian Loncar.

When their names are Googled, your ad pops up. Would you care to comment about why you think this is acceptable marketing?

Thank you.

He hasn’t written back yet. If he does, I may update this.

This is, by the way, part of the Wild West of marketing. A year ago in Wisconsin, under presumably different laws, a court held that stealing someone’s name to use as a hidden advertising keyword might past muster in a civil suit, as in that state (unlike New York) there was apparently no statute. There was no word in Eric Goldman’s Forbes column about the ethical implications. (Update: Under Florida law, this is not an ethics violation. I think is should be.)

But I think the message is pretty clear that, once again my friends, when those marketeers come-a-callin’, you had best remember that they become your agent when you hire them for marketing. Marketing is part of attorney ethics. If you elect to outsource your marketing then you have outsourced your ethics. And reputation. And possibly your bank account and liberty.

It sucks to be a test case.