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)

I 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.

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.

Mark Bower

While this guest post is based on a hypothetical, the ethical issues raised are the type any lawyer may encounter in a medical malpractice case that implicates a hospital resident.

The author, Mark Bower, is not only a long-time medical malpractice practitioner whom I’ve known for decades, who has guest blogged in this space before (and again here), but he has also been a member of the Ethics Committee of the NY County Lawyers Association for 20 years. In other words, this piece is right in his wheelhouse…

——————————————By Mark Bower

Ordinarily, doctors sued for medical malpractice view their insurance company as their friend and protector, but sometimes, that is not at all the case.

Let us assume a hypothetical case for purposes of illustration: A hospital, its senior private attending physician, and an employed resident physician in training, are sued for medical malpractice (birth trauma). The hospital’s resident is a young obstetrician. There is a question as to who delivered the baby. The person who (mis)handled the delivery is the “target” of the malpractice claim.

Continue the hypothetical: To protect its senior attending, the hospital and attending physician both claim that the resident delivered the baby. To defend herself, the resident claims that the attending physician did it. This factual dispute cannot be resolved by the delivery record, and the mother’s recollection of the difficult birth is not accepted as reliable.

Because the hospital wants to protect the senior attending physician, hospital’s attorneys cannot simultaneously defend the resident physician. The insurer for the hospital must retain “independent” counsel to represent the hospital’s resident.

Let’s develop our hypothetical further. Let’s assume that eventually, the case is settled by the hospital’s attorneys. Because the hospital has vicarious liability for its resident, the resident does not have to contribute to the settlement from her own funds. The defense insurance company vests its settlement authority in the hospital’s attorneys, and does not want to pay for a second attorney to attend or participate in the settlement negotiations, particularly since the hospital’s insurance coverage will pay the resident’s share in any disposition anyway. As a result, the resident’s “independent” counsel does  not appear or participate in the settlement negotiations.

Only after the settlement is finalized does the resident learn that the settlement payment was attributed to her. Because she has no out-of-pocket responsibility to pay any part of the settlement amount, she was not consulted. Nonetheless, because the bad outcome is attributed to her, she has to be reported to the NYS Health Department and the National Practitioner Data Base (NPDB). Those reports may impact badly on her future career, through increased malpractice insurance premiums, decreased employability, etc.

This scenario raises the questions about the “independent” counsel’s duty to protect the resident despite the complete absence of personal contribution to a settlement, and whether there was possible ethical lapse and/or legal malpractice in this situation. We believe that in these circumstances, the “independent” counsel must appear at the settlement negotiations to defend and protect the resident, even though she has no personal financial “exposure” in the negotiations. If the resident’s attorney did not do so, and the result is that the resident gets a “black mark” with the Health Department or NPDB, the resident may have a legal malpractice claim against her own attorney.

Even where the settlement is paid by the hospital’s insurance coverage, and the resident does not contribute to the settlement payment out of her own pocket, the resident is at risk from the settlement, because she may still suffer career harm and indirect economic harm (damage to her reputation and professional standing, damage to future employability and insurability) that may follow and limit her professional advancement. Particularly because a resident doctor in training is at the beginning of her career, those harms may add up to large amounts of money over the course of a professional lifetime. As a result, the resident’s attorney has a duty to protect the client from these harms, regardless of whether she contributes to the settlement with her own funds or not.

The problem of conflicted loyalty that this case presented, is unavoidable. The insurance company typically does not want the “independent” attorney to impede or block the settlement, or try to shift the responsibility back to its other insureds, in particular in this hypothetical situation, to the more senior attending doctor. The “independent” attorney may depend on the insurer’s satisfaction with his work (and possibly the hospital’s, satisfaction as well), to get future work when the opportunity arises.¹ The “independent” counsel may earn gratitude not shared by the resident doctor.² The “independent” counsel has a personal interest in pleasing the insurer at the expense of his client. Such conflicts of interest are an inherent part of lots of defense work.

This divided loyalty is an unavoidable problem, but the resolution of it is easy, according to basic legal ethics: The attorney must act with undivided loyalty to his client (in this case, the resident in training), even if that conflicts with the wishes of the insurer that retained him, or the hospital whose good will he depends on.³ The attorney must act selflessly, including sacrificing his self-interest if necessary, to protect his client.

As a result, the courts generally condemn such acts of disloyalty to the client, and allow appropriate remedies against the attorney that allowed the others’ interests to advance, to the detriment of his own client.⁴

In our hypothetical situation, the fact that the settlement payment does not come from the resident’s pocket, seemed compelling to the “independent” attorney. That, and the carrier’s reluctance to pay multiple attorneys to attend settlement negotiations, is probably why the “independent” attorney would not attend the settlement negotiations and fight to prevent the settlement from being attributed to his client. Fighting back, to attribute the settlement to the senior attending physician, could make serious waves, and could even cause the settlement negotiations to fail.  Invariably, “hospital politics” plays a back seat role in these circumstances. The fact that the resident can get harmed in other ways, despite not paying the settlement with her own funds, may get “lost in the sauce.”

The moral of this story is that if a client is assigned “independent” counsel by their employer or the employer’s insurance company, that attorney is charged with the legal and ethical duty to protect his client, not just from paying a settlement out of pocket, but from the other harms that come from having a settlement recording against the client; and the client may have a right to recover for those harms against her “independent” attorney, for failing to protect her against those harms.

Sal Strazzullo, as seen in the New York Times

I’ve seen this act play out before: A lawyer seeking press for himself spills damaging information about his client.  Here’s the story.

Yesterday’s New York Times has a fluff piece on Salvatore Strazzullo, entitled “The Night-Life Lawyer” (as if there was a different set of laws for criminal or negligent conduct that takes place at night). The article looks like it was written by his publicist, claiming that this is a “niche” of the law.

The Times chronicles this lawyer having handled, over the past few years, a variety of second and third tier celebrities, doorman and drivers who go out to expensive clubs at night and figure out how to get in trouble. Whatever. That isn’t the part that hit home to me.

No, the part that hit home was that, in order to provide material for the story, Strazzullo spoke to the press about information received in confidence, that just so happens could also be damaging to his client. Providing confidential information is bad enough, but giving damaging information for a self-serving article seems to me to be about as low as you can go.

Ingrid Gutierrez with Drake and Chris Brown. Photos credit, RadarOnline

He talks about a fight in the tabloids two months ago between two rappers — Drake and Chris Brown — and their fight over a woman, the singer Rihanna.  Sex, violence, booze,  celebrities and thrown bottles.  Real tabloid stuff, and this time with more well-known celebrities in the middle.

And he gets a client, a model (of course) named Ingrid Gutierrez who claims to have been hit in the face by a thrown bottle and took a few stitches.

This was the Times description:

Just two months ago, Mr. Strazzullo was sound asleep at his apartment when he received a typical plea for help from one of his regular clients, the Brooklyn model Ingrid Gutierrez. Ms. Gutierrez, 21, had dropped by W.i.P., a club in SoHo, with a half-dozen friends and found herself drinking Champagne at a table with the R&B singer Chris Brown. She was, by her own account, chatting with Mr. Brown’s bodyguard when a rapper, Drake, sent Mr. Brown a note indicating that he was having sexual relations with the singer Rihanna, a former girlfriend of Mr. Brown’s. This, predictably, precipitated friction between the men’s entourages: Voices were raised, obscenities exchanged, bottles thrown. One bottle struck Ms. Gutierrez, who was rushed to the emergency room for stitches. She wanted to sue.

Do you see that part in bold? One of his “regular clients?” Why not just send a gold-embossed invitation to the defense lawyers to ask about criminal problems she may have had?

But this part is even uglier, from the lawyer’s point of view. Look at this quote:

“I got her text at 4 a.m.,” Mr. Strazzullo recently recalled. “All it said was: ‘I just got hit over the head.’ ”

Now isn’t that nice, disclosing that, right away, she was thinking lawsuits and calling a lawyer? Why not just hand the defense another argument on a silver platter that lawsuits were the first thing on her mind? And that she couldn’t even wait for the morning?

Now it is conceivable that Strazzullo had the permission of his client to reveal this to the press, and that it therefore might not qualify as a violation of the code of professional responsibility. But. It is still a major no-no. The client, just 21 and in the modeling biz not the legal one, isn’t in a position to know how the information can be used against her. Even if the lawyer has permission to use that info, it still shouldn’t be revealed.

It is understandable, by the way, for a person injured in an assault to want to speak to a lawyer. Depending on what happened, they might be quite angry and upset and want to know what, if anything, they should do, and how they can strike back, legally, at someone that has wronged them. Anger is a huge motivator. But now she might have to explain things to a jury. She was hit by a bottle, why would she want to be explaining lawyer calls? Because one of the defenses will be — as it is in 99% of the cases– that the injured person just want to hit the lottery regardless of what happened. Why worry if some judge will let the evidence in? (Defense: “Judge, this is admissible to prove she wasn’t hurt as bad as she says, as she  had the capacity to think clearly and call a lawyer.”)

Have we seen this trick before? Two years ago I wrote about Chicago criminal defense lawyer Stuart Goldberg who spoke with always-in-trouble actress Lindsay Lohan about representation. There was no meeting of the minds on that score, and he then went bleating to the press about what was said.

Thankfully, this stuff doesn’t happen very often compared to the number of high profile cases that are out there. Most lawyers know better. But when they do spill the secrets, other lawyers should take note and expose what has happened so that others might learn from it (both lawyers and clients) that this is wholly unacceptable behavior.

Usually, when you see and hear cop videos and recordings on the web it is part of the a condemnation of conduct, going back to the Rodney King beating video up to the UC Davis Occupy protest where Lt. John Pike pepper-sprayed protesters like they were weeds.

But not today. Today the video (and audio) exonerates the cop.

In Matter of Dear, a guy gets a speeding ticket for going 85 in a 55 zone. Said guy happens to be a lawyer. And said lawyer, who is also an orthodox Jew, tries to blast his way out of the ticket with this humdinger of a letter:

“Ladies and Gentlemen:
This ticket shall be dismissed immediately since -
a. there was no speeding and the officer refused to show me evidence that there was: (i.e. – “not guilty”)
b. even if there was speeding (which there wasn’t) – I was in a 65-mph zone NOT a 55 mph zone; and
c. The officer called me a “jew kike” – and this prejudice obviously was the cause for the ticket.
I am a licensed attorney in NY State and will be representing myself in this matter (contact details enclosed).
Eliot Dear
[signed] Eliot Dear Esq.
[business card attached]“

Ouch. You know where this is going, right? The cop had a video camera on the car, unbeknownst to Dear. And the cop was wired for audio.

And when confronted on the phone about this by an investigator — who was also recording the call — he didn’t ‘fess up that he  had lied. The decision by the First Department today continues regarding the investigation:

The interview continued and respondent added that the trooper dismissed respondent’s proffered explanation for speeding, namely, that his pregnant wife needed a bathroom, as more baloney from “you guys,” which respondent stated referred to orthodox Jews. Respondent further recounted that the trooper displayed a demeaning attitude toward respondent and his wife. However, none of this information was supported by the video or audio recordings made during the traffic stop.

“You guys.” Nice.

There is a long explanation offered in mitigation — offered after he finally does ‘fesses up —  about his psychiatric treatment for a variety of problems and family issues.

And the verdict? Suspended for six months. The Court finds that Dear made accusations, ”which accusations were prejudicial to the administration of justice, engaged in conduct that adversely reflects on his fitness as an attorney, [and] asserted positions which served to harass and maliciously injure.”

Why suspension and not something a little lighter? The Court:

Here, respondent cavalierly attributed anti-Semitic slurs to an innocent person in a manner which could have had devastating consequences to that person’s career. This act alone warrants a harsh sanction, not to mention that it was done to gain an advantage in an administrative proceeding. Notwithstanding the mitigating evidence and respondent’s apparently sincere remorse, his behavior was reckless and reflects poorly on the bar. Under the circumstances, censure or admonition is simply too lenient a penalty.

File this under Attorney Ethics.

When I started writing, it was going to be about the Philadelphia firm of Feldman Shepherd, and it’s creation of  a web site (link coded “No Follow” so that it doesn’t get Googlejuice) devoted to soliciting Penn State sexual abuse victims, as suits against the school are likely.

I was just about to hit “publish” and question the firm’s ethics. But then I learned of California attorney Michael Bomberger. He and his firm Estey Bomberger don’t even have an office in Pennyslvania, but that hasn’t stopped the firm from hunting for victims.

Estey Bomberger has created a page of their website just for this (chock full of SEO-friendly search terms so that people can find it — thanks guys, consider it found). Their office is in  San Diego, which, according to Google Maps when you punch in the addresses, is very far away.

So what is the Pennysylania hook to lure in the victims, because maybe they haven’t been subjected to enough luring from elsewhere already? It’s here with this statement:  ”Founding partner Mike Bomberger is licensed in Pennsylvania.”

Ummm, yeah, well, maybe. And then again, maybe not. You see, his license is “Inactive.” No, don’t take my word for it. Take the word (or the pixels, in this case) of the Disciplinary Board of Pennyslvania.

Nice, huh? Where I come from we have a word for that. Actually many words. But I’ll just use this one: Misleading. I use that one because I’m being nice.

Hey, maybe his licensing fee check got lost in the mail? Well, his office is still across the country, so that doesn’t really excuse things.

But what if he was close? That is the case of the  Feldman Shepherd firm that I opened this post with.

Is their creation of a website devoted to the Sandusky sex abuse scandal ethical? That is only one of my questions. Because I already answered the other one: Is it professional? And the answer is no. I think it looks scummy, though not as scummy as Estey Bomberger.

Yes? You in the back…I see a hand raised.  No, they don’t teach victim solicitation in law school. This stuff is self-taught, or taught by “the marketing people.”

Does this kind of solicitation violate ethics rules? In New York, I think it would be unethical conduct, with lawyer communications prohibited for 30 days after the incident. (I suppose someone could try to lawyer around it by claiming the incidents were more than 30 days ago, but the Jerry Sandusky arrest was recent and a contrary ruling would defeat the spirit of the rule.)

But this is a Philadelphia firm, and different rules apply. So, not needing to dwell on the intricacies of New York ethics, I called Max Kennerly, he being a Philadelphia kinda guy, to get some background on their ethics rules and local practice. In Pennyslvania, their Rules of Professional Conduct prohibit direct communication, but apparently allow lawyers to chase clients through the mail and by other means so long as it is not “in-person” or by “real-time” electronic solicitation. I presume that “real-time” would mean a text or instant message of some kind, which this stand-alone website is not. This is the rule:

Rule 7.3 Direct Contact with Prospective Clients

A lawyer shall not solicit in-person or by intermediary professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. The term “solicit” includes contact in-person, by telephone or by real-time electronic communication, but, subject to the requirements of Rule 7.1 and Rule 7.3(b), does not include written communications, which may include targeted, direct mail advertisements.

(b) A lawyer may contact, or send a written communication to, a prospective client for the purpose of obtaining professional employment unless:

(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or

(3) he communication involves coercion, duress, or harassment.

So it seems that in PA it is ethical, while elsewhere it may not be.

But is it professional? Does it bring disrespect upon the profession? My answer is yes, as I consider solicitations directed toward a particular incident to be utterly tasteless. Nor does it matter if the advertisements are well-written; it is the concept of the directed ad that I find abhorrent.

One of the first rules for looking for a lawyer is to ignore the stuff you see online. Need a lawyer? Ask friends and neighbors for recommendations. Even if they don’t know the right person, there is a good chance they will know someone who does. For example, I wouldn’t handle a will or a divorce, but I could point people in the right directions. If you are good at what you do, clients will find you. They will find you because other lawyers know you are good and will give your name out as the person to call. It’s called reputation.

There is a legal auction site called Shpoonkle. The gut instinct of many is to question the sanity of their name. But not me. I question the sanity of anyone that would use it.

According to this article at VentureBeat, this company seeks to have potential clients post information about their issues and then have lawyers bid on them. As per the article:

People who need legal representation but who don’t have time to call around for rates, or who might not be able to afford a lawyer in other circumstances, can post their needs and get bids. Attorneys then have to compete for a piece of the action. According to the company’s theory, this will lower legal fees.

I’ll get to the ethical issues in a bit, but first let’s tackle the most fundamental issue of anyone looking for an attorney: Getting the right one. And the article cites personal injury law as an example. According to CEO Robert Nitzig:

our users keep more of their winnings on contingency cases

I want to puke already. I don’t know any lawyer that meets personal injury victims that would ever refer to an award as “winnings.” Oddly enough, those that have lost a child, or a leg, or are living in constant pain, don’t see a settlement or jury verdict as “winnings.” I once took a verdict in a case for a Spanish-speaking client that was quite substantial. She was stone faced. I asked her daughter if she had translated the verdict for her mom, and the answer was yes. “Well,” I asked, “What did she say?” “My leg still hurts.”

Now to the guts of the issue: Is a client really keeping “more” of any recovery? Well, now that depends. Let’s say that, in a community where a 33% fee is the standard, that a lawyer “wins” the auction with a 25% bid and the case settles for $100,000. The client got an 8% bonus of about $8,000, right? But not if the case was worth $250,000  in the hands of someone with experience and a proper skill-set. The client, then, would be a huge loser.

You see, as per the article, this is a great site for new attorneys since 13,000 out of the 44,000 graduating law grads don’t have jobs. So how does the rookie lawyer have the knowledge to work the case up, appreciate the significance of injuries s/he has never seen before, know their value, know how to address the defenses and cross-examine the hired expert guns, and handicap the odds of prevailing? And even more importantly, does the newbie lawyer have the depth of experience and the cojones to say “no” when the adjuster calls with the 100K offer, when the case is worth more and that young lawyer is struggling to pay the rent?

There is an old saying that “you get what you pay for” and that is often true in the professions. Not all doctors are created equal, nor architects, nor lawyers. People pay for experience, because that experience is what benefits them in the long run.

Now let us go the dynamics of the auction site itself. According to the article:

People who need legal representation but who don’t have time to call around for rates, or who might not be able to afford a lawyer in other circumstances, can post their needs and get bids.

This raises two distinct ethical issues: First, clients may be seen to have waived their attorney-client privilege by making the information available in such a fashion. They haven’t contacted one lawyer, they have contacted every lawyer in the database that can access the information and who have not agreed to represent the potential client. What if this was a slip and fall in a restaurant, and it just so happens that the restaurant lawyer can access the information also? Now what?  Now the information that the client distributed to, potentially, hundreds or thousands of mystery lawyers, may be anything other than confidential.

How stupid does someone have to be to distribute their confidential information about a legal issue to lord-knows-how-many mystery people?

How do you pick the right lawyer? In one of my very first first posts when I created this blog almost 5 years ago, I wrote on just that subject, and addressed this fundamental question: There are so many attorneys and legal websites, how do I select a law firm? While it may not be the most inspirational writing, I stand by the fundamentals of how to find a lawyer, and a lowest-bidder auction certainly isn’t one of them

And as to the Shpoonkle name, I won’t criticize it’s Yiddish sound. After all, many colorful Yiddish words start with “sh” (or “sch”). Some that spring to mind are shlemiel, shemendrick, shnook and shmoe, all of of which someone would have to be to get suckered by this auction shtick to use this shlock service. Which may result in the client getting shtupped.

Elsewhere:

Shpoonkle By Any Other Name (Simple Justice)

Any lawyer who signs up for this service should be immediately disbarred, then tarred and feathered, then publicly humiliated.  It doesn’t matter how awful a lawyer you are, how pathetic your business, how grossly incapable you may be in getting any client to retain you.  Those are all good reasons to apply for the assistant manager’s position at Dairy Queen.  This is worse.

The Shpoonkle-ization of a Legal Profession w/o Doc Review Jobs (Solo Practice University)

Here you have a race to the bottom as lawyers bid against one another to pay the lowest fee to anonymous clients with legal problems.

Another Attempt at a Reverse Auction for Legal Services (Robert Ambrogi’s LawSites)

With its launch today, will Shpoonkle, the latest reverse-auction site for legal services, find itself suffering the same fate as its forerunners? Or is the time finally right for such a site?

I broach the subject of lawyer advertising every so often, because there seems to be so many different things to write on the subject. It covers constitutional law, ethics and plain old good (bad) taste.

Ethics and constitutional issues butted heads in recent years over New York’s new attorney advertising rules, which went up to the Second Circuit in Alexander v. Cahill, about which I’ve written often as it tracked its way through the judicial system.

Ethics also comes into play with deception, as evidenced by one Joseph Rakofsky, a New York lawyer with scant experience, but whose website sung his praises in oh so many ways. Then he got a real client. Defending a murder case. Which of course, he was utterly incompetent to do and after being exposed in the Washington Post, the story is now buzzing around the blogosphere (Gamso; Bennett; Elefant; Greenfield; Tannebaum; Mayer; Koehler, Above the Law).

And in the plain old bad taste department, I’ve written of lawyer advertising on a funeral home website and, in what I previously thought was the ultimate captive audience spot, over a urinal. All of this  is part of a never-ending race to the bottom, as Scott Greenfield describes it.

Which brings me today to The Buffalo News, and an op-ed by Jeffrey Freedman, and the next round of bad-taste advertising, and the fact that there was an even more captive audience that I hadn’t even thought of, but others, apparently have:

…Captive ads, in case you missed it, is the new Metrodata Services advertising program that allows defense attorneys, bail bondsmen and anyone else who would like to advertise to the captive audience of the recently arrested on big screen TVs in the Holding Center….

So if you thought standing at a urinal and seeing an ad in front of your nose made you a captive audience, then this brings us to the next level: An audience that is captive in the most literal sense of the word, in the local lock-up.

Freedman wonders where this will ultimately lead:

Erie County Medical Center is a potential gold mine of space. Picture the possibilities for hospital gowns. Give patients a choice: Viagra or Cialis today, Mr. Smith?

And just imagine elevators and waiting rooms papered with the faces of compassionate, personal injury attorneys. “We don’t charge a fee unless we win your case.”

I thought that when lawyers dug down deep to advertise at a funeral home website, that this was as low as they could go. But perhaps there are new avenues to be explored in bad taste.

There is a bill pending in North Carolina that would allow non-lawyers to buy interests in law firms, up to 49% of the total. This violates the age old prohibition on sharing legal fees with non-lawyers, and is one hell of a lousy idea. First, read the short piece by Dan Fisher @ Forbes on the bill, then come back.

Welcome back. Now here is the problem from my perch in the personal injury field. If non-lawyers profit from the legal business then there is an incentive for them to “help” their investment by finding cases to refer to the firm. In other words, it is an invitation for private “investigators” to troll for clients. We have legalized ambulance chasing, bringing more disrespect to the profession and our justice system since the non-lawyers aren’t bound by the ethics rules. And the lawyers who get the cases may simply choose to turn a blind eye as to how the cases are coming to the firm, or worse, give equity in the firm to the investigators without asking the critical questions of how the clients were obtained.

When the disciplinary committee comes a callin’, they will profess to be shocked, just shocked, at how their firms’ names were given to potential clients.

Let me show you how this works in the real world. This past weekend there was a horrific bus crash in the Bronx that killed 15 people. And attorneys are prohibited under New York’s 30-day anti-solicitation rules from approaching any of the injured victims or next of kin.

So how can lawyers work around this? By using marketing firms to launder their ethics.

Other firms, such as this one and this one, run “blog” posts about the accident that merely regurgitate the facts from a news article and then follow up with a call to action (If you or someone you know…). I discussed this problem back in 2007 after the new anti-solicitiaton rules went into effect (see: Attorney Solicitation 2.0: Is it ethical?)

So what will happen if non-lawyers have a financial interest in the firm? You can bet your last dollar the situation will worsen.

Larry Ribstein asks why non-lawyers shouldn’t be allowed to own shares of firms, under the theory that the restrictions limit the market for legal skills in the business world. But I don’t think he has given enough thought on how that plays out among other fields of the law.

Elsewhere:

Legal Services Act comes to US (Legal Transformation: The Changing Legal Profession)

Are ABSs coming to America? They may be in North Carolina (Legal Futures)

Lay Ownership Share In Law Firms Proposed in North Carolina (Law Forward)

Part of this short story is about a lawyer named Dominic Barbara, who previously represented Howard Stern (and is a regular side-kick, call-in guest on his show). He also represented Joey Buttafuco, Jessica Hahn, and Michael Lohan, each of whom had more than their allotted 15 minutes of fame. New York Magazine once called him the “biggest, brassiest lawyer on Long Island.” And last year he was retained for a headline making crash on the Taconic Parkway that killed eight people (video).

But the more important part, to me, is the fact that what you see on a lawyer’s website, or in the newspapers, isn’t always what you get.

First, as to Barbara. He was suspended this week after “an avalanche of Grievance Committee sanctions” (nine Letters of Caution, nine Admonitions, and two Advisements). That’s a lot of baggage, and as a consequence of the latest round he was handed an 18-month suspension.  Among the charges, and these seem to be the straws that broke the camel’s back, are that he failed to issue itemized bills as required, failed to supervise the lawyers in his office, failed to timely refund a portion of a fee that had not been earned after the client fired him, and engaged in conduct that adversely reflects on his fitness as a lawyer by failing to adequately communicate with that client (or her new counsel).

But here’s the thing, despite this “avalanche” of sanctions, he has this to say about his firm on  his website:

For more than 35 years, The Barbara Law Firm has performed at the highest level of quality legal representation in the fields of Family, Matrimonial, Criminal, and Civil Law.

The highest levels? I think not. Not with all those sanctions. There is more puffery, of course, as he tries to parlay  the celebrity clients into more business:

Dominic A. Barbara has been leading this firm for more than 30 years, providing personal, assertive, successful legal representation to clients from all walks of life. The housewife, teacher and business owner receive the same care and consideration as the high-profile celebrities who turn to The Barbara Law Firm. Each one is looking for the same thing – a team of brilliant legal minds focusing on his or her individual case.

So what you see on a website isn’t always what you get when it comes to the law. Anybody can write puffery. And just because someone has high profile clients doesn’t mean that they are actually good lawyers. (I never did like that whole “celebrity lawyer” thing.) ” I once tried a case with a guy that had many high profile clients. In the well of the courtroom he was awful. And when I say awful I mean law students could do a better job. I would see him on the news after our trial and the first in my mind was this: His client is gonna hang.

The best way to find a lawyer isn’t by checking out the puffery on a website. It’s by asking around and making sure they handle the problem that you have, perhaps by starting with friends and neighbors and other lawyers who will hopefully be able to direct you to someone who knows what they are doing. In fact, this was the subject of the fourth post I ever did on this blog, more than 1,000 posts ago, when I only had six readers. They were all Bulgarian spammers.

So if you’re hunting for a lawyer, ignore that guy on the news. And certainly don’t be impressed with his website. For as the old New Yorker cartoon goes, on the internet, nobody knows you’re a dog.

Avvo screenshot at about noon on 2/11/11

Addendum: I think it’s worth noting that this “avalanche” of Grievance Committee sanctions didn’t show up on Avvo‘s lawyer rating service, a service of which I’ve previously been critical. (This suspension hasn’t either, but I cut them slack for that because the opinion was just released yesterday.) But the point is that many disciplinary actions are hidden from public view. In other words, Avvo probably couldn’t have found the problems even if they looked. And that type of incomplete information can be rather misleading to the consumer, notwithstanding all the caveats that Avvo might provide. A copy of Barbara’s listing, showing “No professional misconduct found” is at right.

Elsewhere:

Learning Tricks from an Old Dog (Simple Justice):

Is this your hero?  Is this your savior?  Is this the lawyer who you want standing next to you when your life is on the line?  Or is this the guy who will charge you a whole lotta money because he’s a big time “high profile” lawyer, and when you decide that he’s not the guy you want next to you despite all the puffery on his website, he won’t give you your money back? (more)

Loud Lawyer Dominic Barbara suspended for 18 months (Courtroom Strategy):

I have had clients who have come to me after a foray into his firm’s office that when they complained about the non-stop pouring of money into legal fees, that he would offer to stay on the case if he allowed them to hold a press conference about the case. (more)

Update: Dominic Barbara Retires In Wake of Suspension

(Note: Subsequent to this post, news organizations ran stories on the suspension)