Archive for the ‘Attorney Ethics’ Category

You want me to violate what law?

imposter

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, ijustgothit.com, 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 (txcarwreck.com) 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.

BenAbbottTexasLawyer-Standing

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.

Ribbeck Law Bench Slapped Over Malaysian Aircraft Disappearance; Threatened with Sanctions

RibbeckLawFirm-714660Chicago based Ribbeck Law was sharply bench slapped yesterday and threatened with sanctions by Cook County Judge Kathy Flanagan over the motion it filed regarding missing Malaysian Airlines Flight 370. The motion had allegedly been made to identify parties to a potential lawsuit that it intends to file in the United States.

Noting that similar Ribbeck motions had been rejected previously regarding air crashes in San Francisco and Laos, Judge Flanagan was not kind to Ribbeck. Via the Chicago Tribune:

“Despite these orders, the same law firm has proceeded, yet again, with the filing of the (Malaysia crash) petition, knowing full well there is no basis to do so,” Flanagan wrote.

The judge said she “will impose sanctions” if Ribbeck Law continues to make such filings.

While the firm claims it “expects” to represent half the victims, this seems (to me) to mere huckstering and puffery to obtain clients. The basis of my opinion? Repeat conduct.

We start with this, from the Tribune, regarding the missing Malaysian plane:

The first petition, filed March 25, named as a plaintiff Januari Siregar, who was described as the father of missing passenger Firman Chandra Siregar, 24.

But the plaintiff has turned out to be an uncle at odds with the rest of the family, and a spokesman for Siregar’s real father told the Tribune in an email Monday that he had not authorized Ribbeck Law to take legal action in Chicago.

From there we turn to the fact that the firm has put out press releases regarding its filing. Why put out press releases? As a way of trying to get a message to other victims that says, “Hey! We’re already handling this case, why not come to us?”

And from there we roll back further to last year when the National Transportation Safety Board reported the Ribbeck firm, in connection with the crash landing of Asiana Flight 214 in San Francisco, to the agency that regulates attorneys for further investigation of its online communications and in-person meetings with passengers. This was, presumably, referring to its disciplinary commission.

According to this Associated Press articleRibbeck was the only firm that warranted such referral (as of the time it was written). The referral came because because the NTSB “received an unspecified number of complaints about solicitations since the July 6 accident that killed three Chinese teenage girls and injured 180.”

I have also used this blog to present evidence of Ribbeck violating both a federal 45-day anti-solicitation law for aviation crashes as well as New York’s 30-day anti-solicitation rule for personal injury matters. The firm, for example, set up a website  and ran Google ads for the purpose of soliciting victims from the crash of Continental Airlines 3407 in Buffalo in February 2009. The contact person was attorney Monica Kelly. Other firms had also erred by doing this, as I noted in a February 16, 2009, posting.

A week later I followed up, and it wasn’t pretty for the firm. All the other firms had yanked down their ads, having been caught doing what they shouldn’t. Did Ribbeck? See: Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims?

And there is much more. From the Chicago Tribune two days ago:

In a recent commission action that is public, however, Kelly was recommended for censure last month for allegedly continuing to try to represent a survivor of a 2009 Turkish Airlines crash in the Netherlands that killed nine passengers and crew. The survivor had sent a letter terminating the relationship, records show. Kelly has appealed the decision.

According to commission records, Kelly also was accused of improperly soliciting that victim, who walked away from the crash but later learned he’d suffered a broken back and other injuries. The man testified that four people came to his home in 2009 as he was recuperating in bed, set up a projector and pitched him on Ribbeck’s prowess as an aviation litigator, according to the records. In its written ruling, the panel said there was not enough evidence to sustain those charges.

In 2008, Kelly’s brother and partner in the firm, Manuel von Ribbeck, was cited while working for another firm he allegedly posed as a Red Cross worker when he approached a man who’d lost his wife and daughter in a plane crash in the Bahamas.

The man alleged von Ribbeck invited him to a nearby hotel, where a projector had been set up and literature about the firm he was working for was passed out. The man told his lawyer, John Ruiz of Miami, who later filed a complaint with the disciplinary commission.

James Healy-Pratt, from London-based StewartsLaw, which is also dealing with these issues, gave me his thoughts on yesterday’s order threatening Ribbeck, given the fact that the airliner is still missing and that such lawsuits are often kicked out of US courts. He said he was:

surprised and confused with the premature legal activity in Chicago State Court. This was especially so, given that the airliner is still missing to this day, and the public fact that some 10 years of US Federal Court decisions have kicked out real lawsuits, on forum non conveniens motions, in foreign air disaster cases just like MH370. What was not surprising was the swift, decisive, and no-nonsense response of the Chicago State Court in dismissing the baseless lawyering, and promising sanctions for any repeat performances. This was an unwelcome and insensitive distraction for many of the families of MH370 at a very difficult time.

Other aviation lawyers are also outraged.  From this Reuters article:

Several U.S. aviation lawyers and experts called the Ribbeck filing premature and a publicity stunt, since the details of the plane’s disappearance were still largely unknown.

Justin Green, a lawyer with competitor aviation law firm Kreindler & Kreindler, said the filing was “nothing short of outrageous.”

“Without plane wreckage, victims’ bodies and any substantial evidence of cause or potential motive, there is simply no way to determine liability at this point in the investigation, and any legal counsel should recognize that,” he said in a statement on Monday.

And Robert Clifford, who also litigates aviation disasters, had last week predicted Ribbeck’s motion in the missing Malaysia case would be tossed out of court. He told Inside Counsel the filing was “grossly premature and without foundation.” He also described it as a “publicity stunt.”

There is a big downside to putting out press releases, filing frivolous motions to garner press attention and using the web to solicit clients in violation of federal and state rules. And that downside is that it may pique the interest of others who have strong opinions on ethics.  It isn’t only victims and their families that are watching.

 

NJ Files Ethics Complaint Against Rakofsky (And Why It’s Important to You)

Internet_dogThe New Jersey Office of Attorney Ethics has filed a Complaint for misconduct against Joseph Rakofsky. It’s dated December 16, 2013, but hasn’t been previously reported.

There are two main issues in the Complaint. The first deals with the way he described his prior legal experience in web site advertisements. The second with the way he sought business in states where he isn’t admitted to practice law.

For the reasons below, I think this is a pretty important case to follow that affects all lawyers, regardless of whether we advertise or not.

But first, a very fast primer for those new to the Rakofsky saga: He was a recently admitted New Jersey attorney advertising his services in New York and other states, claiming vast experience. He then went down to Washington D.C. to try his very first case — a murder trial.

He didn’t do well, with the judge declaring a mistrial part way through citing, among other things, his lack of competence.

The Washington Post picked up the story of the trial, and then bloggers picked up the WashPo story and added more, regarding (among other things) the subject of his advertising and its relationship to his actual legal experience. Then he committed career suicide by suing a boatload of bloggers for defamation, including me, in a case quickly dubbed by Scott Greenfield as Rakofsky v. The Internet.

He then amended the suit to add those that skewered him for starting the suit. The case was finally dismissed last year.

Primer over. Read those links if you want more (or some of the 101 links here), as it’s time to turn to the nuts and bolts of the ethics complaint and his response. But I really only want to touch on one issue, and will leave the rest for others, as I am local counsel to many of the people sued. What you get here today, therefore, is mostly just a few facts and only limited opinions.

The first of the two subjects the ethics complaint touches on is the way he advertised himself, among many other claims, as having:

worked on cases involving Murder, Embezzlement, Tax Evasion, Civil RICO, Securities Fraud, Bank Fraud, Insurance Fraud, Wire Fraud, Conspiracy, Money Laundering, Drug Trafficking, Grand Larceny, Identity Theft, Counterfeit Credit Card Enterprise and Aggravated Harassment.

And the problem identified by the Office of Attorney Ethics is that he had barely any experience at all and inflated the importance of brief stints at a few firms, some no more than a few months long. The Complaint maintains that this was misleading advertising. In his answer to the Complaint, Rakofsky states that one of the mitigating circumstances for his conduct was that he was “young and inexperienced.”

The second issue had to do with his advertising his services in Washington D.C. and New York (and Connecticut, though that isn’t cited in the Complaint), even though he’s not admitted in those states. That is a big no-no. His defense, culled from his answer, is that he was a partner of some type with Sherlock Grigsby in Washington D.C., who was local counsel to the murder trial, and with Richard Borzouye in New York, who was local counsel here as Rakofsky sought pro hac vice admissions in several matters.

The exact nature of those relationships is described by Rakofsky’s counsel in the answer as “partners in that they shared expenses and referrals of cases providing access to other jurisdictions.” This, he seems to argue, lets him advertise that he has an office for the practice of law in other states. Rakofsky’s counsel asserts, in fact, that “This was intentionally his business model.”

Now there is a lot of meat and potatoes for others to analyze within those documents — competence, partnerships, advertising, solicitation, unlicensed practice of law and more — but this is the part that I wanted to discuss: When these twin issues of misleading advertising and practicing law outside his own jurisdiction were brought to the attention of the New York judge that heard the motions to dismiss in our defamation case, he rejected it all. He called it, quite charitably, mere “puffery” and moved on. (See Transcript 4.8.13, at page 38-40.)

Other judges might have been livid and lowered the boom on him, not only sanctioning him but referring him to the District Attorney for potential prosecution regarding the practice of law without a license. I think most people believe he got off very easy.

There will be a hearing in New Jersey at some point in the future on the ethics charges, though it’s not yet scheduled. My understanding is that such hearings are open to the public. The Complaint and answer in this matter are likewise public and I’ve provided them at the bottom of this post.

New Jersey is, therefore, very much unlike New York, where most disciplinary matters are kept hush-hush. Attorney Dominic Barbara, for example, infamously racked up nine Letters of Caution, nine Admonitions, and two Advisements without the public knowing, before finally being suspended. But it was only then, at the time of suspension, that all those other sanctions came to light.

New York and New Jersey couldn’t be more different, it appears, in how they handle ethics complaints.

The issue of lawyers exaggerating their experience in a misleading way has percolated among many law bloggers, often summed up by the now-ancient (1993) New Yorker cartoon that I used as art work above, “On the internet, nobody knows you’re a dog.”

The instances of ethics committees trying to hold lawyers accountable for internet advertising are few and far between, and it’s clear that the attitudes of ethics panels will differ between states. While I obviously have a personal interest at stake, I can’t help but think that an objective viewer will find some pretty important lessons that emerge when the smoke has cleared, and possibly new case law.

The matter deserves to be watched — not to kick Rakofsky again — but to see how a state ethics committee will handle issues of misleading advertising on the internet. While the standard of what constitutes misleading is no different than a dead-tree Yellow Pages ad, the reality is that vastly more information can be put up on a website. And that means greater opportunity to “massage” a biography, and greater ease for lawyers to advertise their existence in jurisdictions where they aren’t admitted to practice.

The ultimate decision in this ethics case will matter to to us all. Because even if you don’t advertise, our collective reputation as attorneys is affected by those that do.

The Office of Attorney Ethics Complaint is here:ComplaintAndExhibits (December 16, 2013)

Rakofsky’s Answer is here: Answer Rakofsky (January 27, 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

Proner Law Firm Violating Ethics Rules Over Train Accident? (Again?)

PronerAndPronerYouTubeAd

Screen Shot of Proner & Proner Ad on YouTube, 9 pm on December 1st, with YouTube noting it had been up for 11 hours.

Well, there they go again. It was just this past May that I took the New York law firm of Proner & Proner to task for stepping all over New York’s attorney ethics code with regard to a local train accident, and they seem to be back at it again. Yesterday’s deadly train derailment in the Bronx occurred about 7:20 am. The Proner law firm ran their first ad on YouTube within hours.

Let’s review, shall we?

In the wake of the 2003 Staten Island Ferry crash that killed 11 — and the race by some law firms to run ads in the Staten Island Advance before all the bodies had even been pulled from the wreckage —  New York updated the Rules of Professional Conduct to stop the unseemly chasing of cases soon after a tragic event. This is our 30-day anti-solicitation rule:

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.

And just to be clear about what solicitation means, yes, it seems to mean doing something exactly like this — targeting a specific group. Read for yourself:

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.

I’ve written about this 30-day rule often, first after Captain Chesley Sullenberger splash landed a plane in the Hudson, then after a plane crash in Buffalo.

And most recently, I brought it up with this same firm, Proner & Proner, after another Metro-North derailment in Stamford Connecticut, when they apparently did the same thing they do today — use YouTube to solicit cases, despite our anti-solicitation rule. I counted stock videos uploaded in the hours after the accident, all of which have keyword loaded text to accompany it. See the screen grab above.

This makes Proner & Proner the second firm to get dishonorable mention twice on this blog for the same infraction.  (The first went to Ribbeck Law after plane crashes.)  I’m willing to bet, given that Proner has over 1,000 YouTube videos, that this type of conduct is probably standard procedure for them.

Why write about it again? Apparently, because those in charge of doing the disciplining either:

1. Don’t read this blog / didn’t notice; or

2.  They did notice but don’t actually care enough to do anything about it.

I sure hope it is the former and not the latter, because the idea that the courts would institute ethics rules but not follow them isn’t a thought I like to contemplate. Since I happen to think that the 30-day rule works, I likewise think it’s important to enforce it.

It’s also important to note, as I always do when taking a firm to task when my eyes see as ethical issues, that there are very few firms that do this. But those that do serve to influence how the public feels about lawyers. And when I go pick a jury on behalf of my own clients, my clients are the ones that suffer from the deep cynicism that such conduct creates. This is not just my opinion.

Judge Frederick Scullin, Jr. sitting in the Northern District of New York in Alexander v. Cahill, wrote in a footnote about the reason for the rules:

Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished.

It should be the obligation of attorneys to improve upon the system of justice, not bring it down.

Can You Secretly Record the Medical-Legal Exam?

SecretSurveillanceVideoOver the summer I did a series of pieces on Dr. Michael Katz, who got busted by a judge for lying under oath about the length of the medical-legal exam that he did on the defendant’s behalf. He was claiming it was 10-20 minutes or so, yet a secretly recorded video had him at just one minute and 56 seconds. The judge wasn’t pleased.

A mistrial was declared and the good doctor was referred to the District Attorney for possible perjury prosecution, to the Administrative Judge for possible civil contempt and to the Department of Health – Bureau of Professional Medical Conduct to evaluate his fitness to practice medicine.

I covered a lot of angles in that series, even doing original research on the length of exams by other “frequent flyer” experts that insurance companies rely upon, and finding an average length of under five minutes for those I looked at.

But one piece was missing from my series: Is it permissible for plaintiffs’ representatives that accompany them to these exams to surreptitiously videotape the doctor doing the exam, and if this is done, does that video need to be exchanged? The reason it was missing is that there really isn’t much in the way of law in this area.

To be sure, Justice Duane Hart‘s initial reaction in the Katz case was that this was improper conduct by the plaintiff, and initially sanctioned him. That sanction was withdrawn, but in the process he had also declared a mistrial on a case that had been going for a month. The problem that Justice Hart had to wrestle with is that there is no statute governing this and little case law.

This week on that subject, in the New York Law Journal, comes an article by Ben Rubinowitz and Evan Torgan (Turning the Table: Cross-Examining IME Doctor Using Video of Exam, $ub). They are, by all measures, well respected attorneys here in New York, and these guys frequently lecture on various aspects of personal injury practice.

In the absence of either statute or case law to analyze whether it’s acceptable to video, they turn to ethics opinions. But:

[T] he ethical opinions regarding secret video-recording specifically fail to provide clear guideposts for attorneys. For example, the American Bar Association, in opinion 01-422, found that, in general, undisclosed taping by an attorney or his agent was not in and of itself prohibited. In accordance with that opinion, The New York City Bar modified its previously held position that undisclosed videotaping was unethical, holding that such conduct was permissible, but only where the lawyer “has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good.”

What constitutes “a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good”? Good question, glad you asked. And no, I don’t have the answer because such answer does not (yet) exist. Do I think it is a generally accepted societal good to catch a doctor doing a 2-minute exam that he claims was a 15-minute exam? Yep, I sure do. The scoundrels should be purged from our midst if we would like our system of justice to have more integrity.

It’s unclear to me why recording such exams should be a problem. Defendants, after all, are free to do secret surveillance of plaintiffs. Why shouldn’t a plaintiff be able to do likewise to the defense medical examiner, especially when we have excellent reasons to believe there is widespread corruption going on? The doctor isn’t even a party to the action.

Back to Rubinowitz and Torgan:

As it relates to personal injury actions, defense attorneys have become well versed in the use of videos to discredit a plaintiff’s claim of injury. While the law regarding the surreptitious taping of a plaintiff in a personal injury action has developed over many decades the issue of the propriety of the taping in the first instance and its disclosure seems to have been answered: There is no prohibition against such taping and there are now definitive time periods in which disclosure of the video must be revealed.

When it comes to the videotaping of the IME, however, the law is not so clear. In New York not only is there no statute directly on point but there is a paucity of case law supporting or prohibiting such conduct. The question that will likely be addressed in the near future is whether the plaintiffs attorney or his agent should be permitted to videotape the independent medical examination, and if so, when disclosure should be made. Many see no difference between the defendant’s right to surreptitiously videotape the plaintiff and the plaintiff’s right to surreptitiously videotape the IME. Both the plaintiff and the defendant are seeking to use the video for a similar purpose: to discredit the credibility of an individual through the use of extrinsic proof.

The sooner this gets resolved by the appellate divisions, the better, perhaps with a bit of help from the various ethics committees. But from were I sit, there is simply no sound reason to object to the practice. Every other formal part of litigation where evidence may be presented to a jury is recorded somehow, without exception. That a doctor would be able to claim something happened at a medical-legal exam — which is very much a formal procedure — when the plaintiff says no such thing happened, is very easily remedied.

Why would anyone be upset about making the process more honest? Why should there even be ambiguity over how long the exam took or whether certain tests were done?  As I noted over the summer when discussing next steps for this problem, technology is now completely unobtrusive. And with Google Glass coming along, the filming couldn’t be easier.

A Lesson In Ambulance Chasing…

HenryLungWant to know how ambulance chasing works? From the Appellate Division (Second Department) comes this story of attorney Henry Lung, censured today.

The  name of the runner or investigator is Virginia Mello. She finds the potential client in a very big automobile case in 2005. Mello is not an attorney.

Lung makes this offer to Mello: That if she gives him the case, he will then flip the case to a reputable firm in exchange for a referral fee to him of, I assume, 1/3 of the legal fee. And Lung, in exchange, will then give Mello 10% of his share. In cash.

The conspiracy is entered into and the case is then referred to Sullivan Papain Block McGrath & Cannavo, a well-regarded law firm that presumably knows nothing about the shenanigans that took place. They take the case in 2005 and settle in 2008 for $4.1M, a whopping big sum. Lung is given a $450K referral fee for the legal work that he did.

Lung then proceeds to make his cash payments to Mello…as per the decision today:

 Subsequent to receiving his share of the attorney’s fee, [Lung]  made cash payments to Ms. Mello in the sums of $11,500 in 2008, $8,500 in 2008, $8,650 in 2009, and $3,000 in 2009, as compensation for referring [the plaintiff] to him.

Thus, Lung gets censured by the Appellate Division on two separate issues:

  1. Compensating a nonlawyer for recommending a client, and rewarded that nonlawyer for having made such a recommendation, resulting in employment; and
  2. Sharing a legal fee with a nonlawyer

And Lung seems to have some other problems as well, given that he has previously been sanction  for misconduct:

[T]he respondent has a prior disciplinary history consisting of a Letter of Admonition, personally delivered, for negligently converting client funds, commingling personal funds with client funds, and communicating with a party known to be represented by counsel (March 2005); a Letter of Caution for failing to enter into a written retainer agreement with a matrimonial client and failing to provide the client with a Statement of Client’s Rights and Responsibilities (February 2006); a Letter of Caution for improperly seeking to limit his individual liability to a client for malpractice (February 2006); a Letter of Admonition for, inter alia, neglecting a client’s legal matter, improperly notarizing documents, and submitting a falsely notarized document to a court of law (February 2010); and a Letter of Admonition for improperly issuing a subpoena duces tecum in a criminal action (September 2011).

What can we conclude from this? First, that he has a damn good defense lawyer.  I’m stunned that Lung wasn’t disbarred, or at least suspended from practice. And I don’t see anything in the opinion about the need to disgorge the remaining part of the referral fee that he received.

Second, I often write about people outsourcing their marketing to others, such as those that sell “leads” on cases. And the question is, how were those leads procured? This is an example of how a dirty activity got laundered.

Third, let this be a warning to those that think allowing nonlawyers to buy an interest in a lawfirm is a good idea.

Fourth: The legal proceedings may not be over for Lung or for Mello. I don’t do criminal defense work, but I see an awful lot of cash flowing to her. Do you think Mello declared that money on her tax returns? How did Lung deal with that tax issue?

I’ll let the criminal defense folks weigh in on that one. But in the meantime, I think that part of his Avvo profile that says “No professional misconduct found” will be changing shortly.

Ribbeck Law in Hot Seat (Again) Over Air Crash Solicitation

Back in 2009 I wrote a couple times about Chicago based Ribbeck Law Firm’s attempts to procure clients after a plane crash in Buffalo. I  questioned whether it was violating both New York’s 30-day moratorium on contacting victims/families as well as the federal 45-day rule that prohibits solicitation.

Now, according to this Associated Press article, they are in the hot seat over accusations of unlawful solicitation regarding the crash of Asiana Flight 214 in San Francisco. The National Transportation Safety Board has reported the firm to the agency that regulates attorneys for further investigation of its online communications and in-person meetings with passengers, presumably referring to its disciplinary commission.

According to the article, Ribbeck is the only firm that warranted such referral (so far). The referral came because because the NTSB “received an unspecified number of complaints about solicitations since the July 6 accident that killed three Chinese teenage girls and injured 180.”

Let me say, having covered Ribbeck’s conduct in the past, I’m not in the least bit surprised.

When I covered the crash of Continental 3407 in Buffalo on February 12, 2009 — covering it specifically to see if any firm was violating a new anti-solicitation rule in New York — Ribbeck popped up on my radar. Actually, it popped up on my Google search along with six other firms chasing cases.

The firm was the focus of two posts that I made. The first, on February 16th, detailed how it set up a website (www.continental3407.us ) specifically to solicit for the crash and ran Google ads to direct victims to the site.

The second one, a week later, pointed out that six out of the seven firms had yanked their ads down after my post ran. One did not. Ribbeck was still at it. But it modified its call to action (Please feel free to contact us at    …) to now have merely expressions of sympathy, passenger lists, news, a “legal zone,” and contact information. Not very subtle.

Back then I focused on my opinion that Ribbeck had failed all four prongs of New York’s anti-solicitation test (as opposed to the federal prohibition).

Three days after my post appeared, entitled Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims? (And A Round-Up) ,  I wrote about how Ribbeck had also pulled down its ads. Perhaps they realized they had stepped over the line, or perhaps all the important contacts had already been made, or something else. I don’t know, no one called to let me know.

My decision to search for firms that might violate these laws was not accidental. In fact, the day after the Buffalo crash I wrote about how I would be looking, as this was going to be the first real test of New York’s then-new ethics rules on solicitation. It was during this same time frame that I wrote about how attorney ethics can be “laundered” with a variety of subterfuges: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.

It’s taken a few years to get to this point, but it’s a point that I knew was inevitable.

The federal law that prohibits solicitations within 45 days, by the way, is  49 U.S.C. 1136 (G)(2):

(2) Unsolicited communications.– In the event of an accident involving an air carrier providing interstate or foreign air transportation and in the event of an accident involving a foreign air carrier that occurs within the United States, no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.

Perhaps we will see soon how that rule gets interpreted within the era of website and online solicitations. But one thing is certain, this isn’t new stuff for Ribbeck. They’ve flown this route before.

Metro-North Derailment/Collision and Attorney Advertising

MetroNorthAccidentBridgeport

Photo Brian Pounds; Stamford Advocate

This post asks lots of questions; it doesn’t necessarily answer them. It might make a decent bar exam question.

At 6 pm last Friday, a Metro-North commuter rail train derailed and was then hit by another one in Bridegeport, CT. Many injured, and thankfully no one killed.

For those that don’t know, this is the busiest commuter railroad in the nation connecting New York City’s Grand Central Terminal with numerous points north (up into New York) and east (into Connecticut). I ride this system almost every day, on the same line where the collision took place, but closer to the city and thus unaffected.

This is a New York train system, with Connecticut owning its the rails and stations on its turf and Metro-North maintaining the entire thing.

Enter, stage right, the lawyers, many of whom would like to sign up the cases, especially since the National Transportation Safety Board will do all the hard work of investigating, and no one can blame the injured passengers.

That means it’s time for some folks to advertise. I’ve written on this subject many times in the past, in the wake of a Metrolink accident in California, a plane crash in the Hudson River and in Buffalo and a Staten Island Ferry collision with a pier. Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters)

PronerAndPronerI did a quick search and, it didn’t take me too long, stumbled on a YouTube ad for the firm of Proner and Proner. A screen grab is to the left. The video part is generic lawyer advertising about what they do and how long they have done it. You will not be impressed.

But.

The web copy under the YouTube ad, posted the same day as the derailment/collision, says:

Metro North Train Accident Bridgeport, CT (866) 209-4366 Connecticut Lawsuit Settlement

And as you can see in the right side bar of the YouTube commercial, there seem to be five such ads. They all appear identical, except for different keywords used in the titles. The law firm marketeers were obviously all over this.

By way of background, before you read the question below, this is New York’s 30-day anti-solicitation rule:

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.

So here are today’s questions, given that this is an accident in Connecticut, not far from the New York border. One train was headed toward New York and one was coming from here:

1.  Which rules on solicitation and advertising govern?  New York has its 30-day anti-solicitation rule for mass accidents. The site of the collision is Connecticut. Do the rules differ depending on the location of the lawyer, the victim or the incident?

2.   Proner and Proner claims to have five offices in New York,  and one in Connecticut.  Yet their website, which I won’t link to, lists only two lawyers. Yeah, I smell marketeers at work here also trying to make a small firm look big. Must they comply with New York’s anti-solicitation rules as they race after Connecticut clients?

3.  Metro-North is a public benefit corporation incorporated in New York.

4.  Is there any doubt the ads target New Yorkers (in addition to others)?

An interesting bit about our rules is that there is a separate area that defines solicitation is (Rule 7.3), making no mention of the location of the client, the defendant or the incident:

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.

And in another that rule proscribing solicitation there is a separate part that is specific to soliciting people in New York:

Rule 7.3(c) A solicitation directed to a recipient in this State shall be subject to the following provisions:

Does that mean that the 30-day rule is for those admitted in New York, regardless of whether the client is in New York?

The thought of this law firm (probably more, I didn’t look) racing on the very day of the collision to get its advertising up and running, no doubt while rescue was still underway, reminds me of the Staten Island Ferry collision of 2011 that killed 11. There were law firms, at the time, racing to put ads in the Staten Island Advance before the late afternoon deadline on the day it happened. People were still trapped on board the vessel. It was just that type of unseemly conduct that gave rise to New York’s 30-day rule.

Will Proner and Proner, or another firm, be the poster child for yet more regulation? I don’t know, but I also have no doubt that an investigation would find much, much more going on than the small snapshot that I write about today.

On a final note, this type of conduct takes places with only a very few firms. Yet, as with most things, it is the outlier actions of the few that tarnish the image of the majority.

My two drachmas for the day.

Personal Injury Lawyers Sue Other Personal Injury Lawyers Over Solicitation

I can’t say I’m sorry to see this kind of lawsuit. Citing unfair trade practices, several Florida personal injury firms have brought suit against their brethren. The problem? Accusations of using “runners” to get clients, also known as ambulance chasing.

The concept of chasing cases has long been a stain on the profession. I know I am not alone in being upset to see our reputations tarnished by the less reputable. Whenever any member of a community acts inappropriately, it affects the reputations of others. Decent cops and priests know all about this concept when they see wayward others from their insular communities in the news in unflattering ways.

Personally, I think outing chasers is a good idea, something that I have written about before (Ambulance Chasers, Runners and Other Creeps). In that 2009 post I wrote:

The message should be loud and clear: If you employ runners to chase cases at the local hospitals you shouldn’t be practicing law. And it should be equally clear that the vast, vast majority of attorneys look down with utter disdain on such conduct. Without question, most of the lawyers that I run into, on both the plaintiffs and defense side, practice law conscientiously and ethically. The corrupt ones should not expect others to come to their defense.

When lawyers practice unethically it tarnishes the entire profession and makes it more difficult to represent those in need of legal services.

According to the brief article I read, these are the firms that brought the suit (in other words, those pissed off at seeing others chase): Lawlor, Winston, White & Murphy in Fort Lauderdale; Metnick, Levy & Long in Delray Beach; Balkan & Patterson in Boca Raton; and Gary E. Susser in Boynton Beach. Suit was filed in Broward Circuit Court on Jan. 4.

Those firms are alleging that the bad guys are: Bader, Stillman & Adler in Margate; Madalon Law Firm in Hollywood; and Gregory Schwartz P.A. in Hollywood are using runners as middlemen to sign up suits.

I am sure that I am not alone in wondering what the evidence will look like. My gut reaction is that the firms that brought suit will have learned of the alleged chasers from clients that they have, who had been approached by “investigators” for the chasing firms. In other words, someone gets handed a business card in a hospital and is pitched on legal services, and the patient goes elsewhere and lets the lawyers that they actually hire and trust what happened before they walked in the door.

The case should be very interesting to watch.

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