I know, you’ve been sitting there on the edge of your seat waiting for this, ever since I discussed the serious lack of private practice work by Elena Kagan. Which wouldn’t be so bad except that only Justice Kennedy seems to have had any private practice experience. Basically, 98% of the legal time for Supreme Court justices has been in academia or public service.

So  Kagan’s Senate Judiciary questionairre was released, and with drool running from my mouth I searched for all that I could on her private practice — much as I did with Sonia Sotomayor when I found her little private firm, Sotomayor & Associates that had no actual associates and subsequently became  a minor issue.

And it turns out, while at the BigLaw firm of Williams & Connolly between 1989 and 1991, Kagan actually did some First Amendment work that was interesting. In fact, of the 10 “most significant litigated matters which you personally handled” that the the Senate Judiciary Committee asked her to list, five had to do with the First Amendment. And, despite being a very junior associate, she was actually given the chance to argue a couple of times in court.

[Note, Eugene Volokh has written about her First Amendment scholarship that followed the years of private practice. This post is only about the real-world experience that preceded it. A full round-up of her career, including scholarship but missing the real-world stuff, is at SCOTUSblog]

OK, here is the set-up —  you’re sitting down, right? — on page 71…

I have had private clients only during the time I was an associate at Williams & Connolly. Those clients included business entities in civil litigation, press organizations defending themselves in libel and related actions, and white- collar criminal defendants.

She goes on to write that her private work was “primarily” in federal court and that it was divided 2/3 to civil and 1/3 to criminal. She concedes having never tried a case to verdict. That wouldn’t be so bad, of course, if the high court had others that had done so for private individuals.

Now to the meat and potatoes: On pages 188-195 she is asked to “Describe the ten (10) most significant litigated matters which you personally handled, whether or not you were the attorney of record.”  As you can see below, some of this stuff is anything but interesting, which gives a bit of insight perhaps in to what happens to junior associates at BigLaw firms.

So here is Elena Kagan’s Top 10 List of private cases. The First Amendment ones can be seen below as d-h. (I’ve listed all 10, in case people find any of the other stuff interesting — two are criminal matters):

(a) Federal Realty Investment Trust v. Pacific Insurance Co., No. R-88-3658. We represented a real estate investment trust in an action against an insurer for the costs of defense associated with a prior litigation. I began work on the case in the middle of the litigation; I did some late discovery and drafted most of the pre-trial motions. On the eve of trial, Judge Norman Ramsey of the U.S. District Court for the District of Maryland ruled in favor of our position on the appropriate standard for allocating defense costs between covered and uncovered parties and claims (760 F. Supp. 533 (1991)). This ruling immediately produced a settlement favorable to our client.

(b) In re Seatrain Lines, Inc., Nos. 81 B 10311, 81 B 10916, 81 B 11059, 81 B 12345, 81 B 12525, 81 B 11845, 81 B 11004, 81 B 11512. We represented Seatrain Lines, Inc., a debtor in bankruptcy, in U.S. Bankruptcy Court in the Southern District of New York (Judge Burton Lifland presiding) in connection with an application by Chase Manhattan Bank and Milbank, Tweed, Hadley & McCloy for legal fees associated with the bankruptcy case. In response to the filing of the fee application, our client counterclaimed against Chase for the recovery of the costs of preserving and disposing of certain properties subject to Chase’s security interest. I handled some of the discovery and drafted most of the pleadings. When the court denied Chase’s motion to strike our counterclaim (and a subsequent motion for reconsideration), the parties settled on terms favorable to our client.

(c) Toyota of Florence, Inc. v. Lynch, Nos. 4-89-594-15, 4-89-595-15. We represented Southeast Toyota Distributors, Inc. in a suit brought by one of its franchisees alleging fraud, intentional interference with contract, violations of RICO, and a host of other claims. I drafted numerous pleadings in the case, including an opposition to the plaintiff’s motion to remand (granted by Judge Hamilton of the U.S. District Court for South Carolina at 713 F. Supp. 898 (1989)), as well as motions to dismiss and discovery motions (ruled on by Judge Edwin Cottingham of the Court of Common Pleas for Darlington County). I also handled some of the discovery. I left the firm prior to trial. Ultimately, a verdict for the plaintiff was dismissed on appeal.

(d) Byrd v. Randi, No. MJG-89-636. We represented defendant Montcalm Publishing Corp. in a libel action arising from an allegation that the plaintiff was in prison for child molestation. The case presented issues relating to the “libel-proof plaintiff” doctrine, the definition of a “limited purpose public figure,” and the actual malice standard. I did most of the discovery, drafted our summary judgment motion and other pleadings, and argued the summary judgment motion before the district court. After initially denying the motion, Judge Marvin Garbis of the U.S. District Court for the District of Maryland dismissed the case a few months later on a motion for reconsideration.

(e) In Re Application of News World Communications, Inc., Nos. 89-3160, 89-212. We represented the Washington Post and WRC-TV in this effort to compel release to the public of unredacted transcripts of audiotapes to be received in evidence at a criminal trial. I argued motions before Judge Charles Richey of the U.S. District Court for the District of Columbia to compel release of the transcripts and to prevent redaction. Judge Richey granted both motions, with the latter reported at 17 Media L. Rep. 1001 (1989). The Court of Appeals for the D. C. Circuit, with Judges Wald, Silberman, and Sentelle hearing argument, denied a motion to stay this order (17 Media L. Rep. 1004 (1989)).

(f) J. Odell Anders v. Newsweek, Inc., No. 90-715. We represented Newsweek, Inc. on appeal from a jury verdict in its favor in a libel action filed in the Southern District of Mississippi. The case raised questions about the actual malice standard, as well as numerous evidentiary issues. I drafted the appellate brief urging affirmance. The U.S. Court of Appeals for the Fifth Circuit held in our favor by unpublished opinion (judgment reported at 949 F.2d 1159 (1991)).

(g) Luke Records, Inc. v. Nick Navarro, No. 90-5508. We filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit on behalf of the Recording Industry Association of America and numerous record companies, challenging the decision of the district court that a musical recording was obscene under the standard set forth by the Supreme Court in Miller v. California. I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law. Judge Lively, joined by Judges Anderson and Roney, reversed the district court’s decision (960 F.2d 134 (1992)).

(h) Bagbey v. National Enquirer, No. CV 89-2177. We represented the National Enquirer in this libel action brought by a person mistakenly identified in the publication as being Jimmy Swaggert’s father. I drafted all pleadings and did all discovery in the case, which began in Louisiana state court but which we removed to the U.S. District Court for the Western District of Louisiana (Judge F.A. Little, Jr.). We eventually settled the case on terms favorable to our client.

(i) Chuang v. United States, No. 89-1309. We represented Joseph Chuang, a former bank president, on his appeal from a criminal conviction for numerous counts of bank fraud. The principle issues in the case concerned the propriety of two warrantless searches of the bank, one by the Office of the Comptroller of the Currency and one by the FDIC. I drafted most sections of the brief, which argued among other matters (1) that the statute authorizing the OCC’s search failed to provide a constitutionally adequate substitute for a warrant, as required by the Supreme Court, and (2) that the FDIC’s search was invalid because it went beyond the bank premises into Chuang’s law firm offices. The Second Circuit affirmed the conviction, with Judge Timbers writing and Judges Newman and Altimari joining (897 F.2d 646 (1990)).

(j) United States v. Jarrett Woods, We represented the former head of the Western Savings Association, a failed savings and loan, in both a grand jury investigation and a number of civil suits brought against him. The Federal Home Loan Bank Board had declared the S&L insolvent and placed it in receivership after discovering various suspect real estate loans. In addition to trying to keep the civil suits at bay, we tracked the grand jury investigation of Woods closely for more than a year – interviewing each of the many people brought before the grand jury – before Woods became unable to afford the representation. Woods was subsequently indicted and convicted of numerous counts of bank fraud.

So I was all prepared to say that we were about to put on the Supreme Court another person without any real private practice experience at all. But, in fact, she has a very small amount. Nothing earth shattering for sure, but a tiny amount nonetheless.

One quirk I noticed in (h), Bagbey v. National Enquirer: She says that “We eventually settled the case on terms favorable to our client.” I wonder if there was a non-disclosure agreement regarding that settlement, and if so, if her comments about settling on “favorable” terms violated it.

Update: I could see how some Senators might review some of her First Amendment briefs, which should be publicly available in court files, to inquire as to whether she actually believed in some of the positions that she took. That could put her on the spot to either defend, or distance, herself from a position that she advocated.

Update x2 — Elsewhere:

• Kagan’s First Amendment record causes concern  (David L. Hudson, Jr. @ First Amendment Center)
• Who Gets the Gag? Elena Kagan’s First Amendment Problem (Gary Bauer @ Human Events)
• Elena Kagan v.  First Amendment (Chicago Sun Times)
• Elena Kagan vs. that bothersome First Amendment thing (Jack Hentoff @ Jewish World Review)

Today’s case solves a quirk in New York’s No-Fault law regarding the “serious injury” threshold that must be met in order to bring a lawsuit. That threshold was established in the ’70s in order to cut back on the number of personal injury cases that resulted from car accidents.

So here’s the question: If the threshold is met under one category of injury, can other categories of injuries be considered by the jury? For example, if the jury finds the threshold has been met with a fracture of the finger (#4 below) but that the back injuries didn’t qualify as a “Significant limitation of use of a body function or system” (# 8 below), can the back injuries be considered by the jury in assessing damages?

These are the categories that the legislature says define “serious injury” under New York’s miserable No-Fault law:

1. A personal injury that results in death;
2. Dismemberment;
3. A significant disfigurement;
4. A fracture;
5. The loss of a fetus;
6. Permanent loss of use of a body organ, member, function or system;
7. Permanent consequential limitation of use of a body organ or member;
8. Significant limitation of use of a body function or system; or
9. A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”.

This issue arose in Rubin v. SMS Taxi, decided yesterday by the Appellate Division (First Department). Defendant had moved for summary judgment claiming that the plaintiff didn’t meet the No-Fault threshold. The lower court granted the motion for all injuries except for the significant disfigurement that the plaintiff suffered. The court then denied plaintiff’s motion for clarification or reconsideration,wherein he wanted to know if, having met threshold in one category, he could proceed to argue all the injuries.

And the First Department reversed with respect to the motion to clarify, and held unambiguously that

“once a jury determines plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff’s injuries causally related to the accident, even those not meeting the serious injury threshold.”

In its decision, the court also cited to a Second Department case (Marte v. New York City Transit Auth.) as support.

Without question, it’s an important principle to remember for all practitioners: You only need to prove one of the categories falls within the serious injury threshold to then proceed for an assessment for all of the injuries that were causally related to the accident.

The case concerning the constitutionality of New York’s attorney advertising rules was argued over a year ago. And Sonia Sotomayor was on the the panel. Now she has gone up and the decision has come down by the two remaining judges of the panel regarding the rules that went into effect on February 1, 2007.

And the 2nd Circuit has upheld the lower court decision in holding that most of the content-based rules violate the First Amendment. A separate section, regarding a 30-day anti-solicitation rule, was upheld both in the court below as well as in the 2nd Circuit.

The decision is here: /Alexander-v-Cahill-2ndCirc.pdf. The case was brought by Public Citizen on behalf of upstate firm Alexander & Catalano. (Addendum: NY Lawyer Rules Are Unconstitutional)

The new rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results. I had previously criticized some of those rules on First Amendment grounds.

The lower court had dumped those rules. The only part of the lower court’s decision that changes is the prohibition on portrayals of fictitious law firms, and that is just a minor modification.

These were the content based restrictions:

An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

Those rules, however, can result in some bizarre results if they were implemented. For instance, an attorney’s photograph on a web site clearly has no relevance to the legal competence of the individual. So if it has no bearing on competence, is it prohibited? (See: Is My Family Photograph An Ethical Violation in New York? and New York’s New Attorney Ad Rules and First Amendment Issues)

The catch-all prohibitions on false and misleading advertising remain in place.

Moving to the 30-day rule, of particular interest is that part of the decision regarding targeted Internet ads. Even before the plane crash in Buffalo last year, I had discussed the myriad ways that savvy marketers might try to circumvent the 30-day rules by targeting the victims with Internet ads and websites, instead of the more traditional types of ambulance chasing, in a post titled Solicitation 2.0. I followed up after the Buffalo crash showing how Google ads and websites were being used (this post has a round-up of numerous posts I did on the subject)

Anecdotal evidence that I collected showed that the 30-day rule was effective in curbing chasing.

So from the opinion comes this:

[W]e conclude that ads targeting certain accident victims that are sent by television, radio, newspapers, or the Internet are more similar to direct-mail solicitations, which can properly be prohibited within a limited time frame, than to “an untargeted letter mailed to society at large,” which “involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession” as direct mail solicitations.
…

New York’s moratorium permits attorneys to advertise to the general public their expertise with personal injury or wrongful death claims. It thereby fosters reaching the accident victims, so long as these victims are not specifically targeted.

It’s a big victory for the First Amendment. But with that will also come more lawyer tasteless ads that embarrass the profession.

hat tip: New York Law Journal

Updated: More coming in:
Lawyer Free Speech Given a Second Chance (Greenfield @ Simple Justice):

As much as I believe that flagrant marketing is distasteful and unprofessional, bad for the profession and part of our race for the bottom, that doesn’t mean that I support legal restrictions or prohibitions. The former is bad. The latter is worse.

New York Advertising Rules Held Unconstitutional (Sorensen @ The Ethical Quandary):

So let’s recap: William Shatner in a judge’s robe? Allowed. Fifty foot lawyers terrorizing Midtown Manhattan? Allowed.

Jim “The Hammer” Shapiro apologizing that he cannot “rip out the hearts of those of have hurt you”? Ok that last one was a trick — already allowed: http://www.youtube.com/watch?v=Q5hn8bhEpMY — but good idea? Maybe that is the better question.

A hearty congratulations to the U.S. Chamber of Commerce on this New Year’s Day. They won my prestigious Golden Turkey Award for the most ridiculous and hypocritical lawsuit of the year, after many hours of super-secret deliberations. The vote was unanimous, after I cast the sole vote just moments ago.

The competition was stiff, with the Chamber railing against everyone else bringing lawsuits but forgetting that they brought one of their own.

While I mentioned it’s suit in my Halloween-themed Blawg Review, the suit really does deserve to shine separately.

In October a group called the The Yes Men staged a fake news conference to pretend they were the Chamber and they had seen the light (angels and hosannas flow through background), and that they were reversing course on their opposition to climate legislation.

Not happy about being parodied, mocked and ridiculed, they sued the The Yes Men in a suit that is no doubt destined for the trash heap of hypocrisy, apparently forgetting about that First Amendment thingie.

Some posts on the subject here:

• Chamber Sues the Yes Men (Mother Jones)

• Chamber Suing Yes Men For “Commercial Identity Theft” (TPM-Muckraker)

• EFF to represent Yes Men in Chamber of Commerce lawsuit (Boing Boing)

Congrats to the Chamber on their fine work, and welcome to the growing stable of tort “reform” hypocrites. We can always count on them to shoot themselves in the foot with over-the-top conduct.

My Golden Turkey, of course, is not to be confused with the book by that name about the worst movies in Hollywood, or any other Golden Turkey awards, of which I imagine a few others might exist. With a last name like mine, I claim squatters rights. Or something like that.

As quickly as it started with a bang, the lawsuit by Miami law professor Donald Jones against mega law blog Above the Law and its Editor in Chief David Lat), has been dropped.

The suit had been widely lampooned around the legal blogosphere, both for its lack of legal merit as well as the resulting public relations debacle.

In today’s post, Lat showed more than a bit of class with this offer:

We have offered Professor Jones a guest post on Above the Law in which to provide his side of the story, about either the lawsuit or the underlying facts. We have offered to keep the comments on that post closed or open, depending on his preference.

The case, in essence, ended pretty much the way I suggested yesterday. Jones bailed out of a poorly thought suit, and at the same time corrected the digital record that had last seen him being arrested on a prostitution solicitation charge. Those who Google him 5 years from now will no longer see an arrest of this type on Google’s first page.

Instead they will see this lawsuit. And if accepts the ATL offer, they will likely see his explanation.

As I noted in the comments yesterday, it was wise for Prof. Jones to drop quickly, since once ATL answered the suit, they would need ATL‘s permission to drop it. And ATL might have decided not to allow it without some other type of concession from Jones. (A tactic I used ten years ago defending one of the first internet defamation cases.)

First Amendment guru Marc Randazza was defending Above the Law, and “hoping to open up this can of whup ass I have lying around.” And if anyone has any thoughts about suing me for anything related to this blog, you should know I’ve got Randazza on my short list also.

Above the Law has been sued by University of Miami law professor Donald Jones. Others are opining on the details of how the suit arose, but I’m here to tell you how I think it will (or should) end.

First, the back story: Prof. Jones was arrested on a misdemeanor charge of soliciting a prostitute. Above the Law picked up the story and, in its legal tabloid fashion, ran with it making him their “Lawyer of the Day” and publishing the police report. They did an update on the not guilty plea, and then followed up again with a post entitled “The Nutty Professor: A Commemorative Graphic.” He has alleged the graphic is racist.

He sued ATL for $22M for portraying him in a false light, invading his privacy and violating the university’s copyright on his faculty photo. (His claims are set forth in this Complaint.)

Others are opining on the merits of the suit and the First Amendment issues. The links to those posts are below. But I’m going to zoom right past all that and try to hit the crux of the case, why it was brought, and how I think it should be resolved without further litigation.

Prof. Jones, you see, has had the charges dismissed. Yet when you Google “University of Miami law professor Donald Jones,” up pops those ATL posts on the first page, since ATL has some pretty impressive Google juice. And nowhere are there any posts from ATL about the charges being dismissed, because that post hadn’t been written. So it’s pretty safe to say that Prof. Jones is steamed. Big time.

Jones has had his Google reputation pretty seriously impaired. If repairing that reputation was his true motive, then by bringing suit, he has taken one step toward fixing it. Blogs all over are covering the story and now everyone knows the criminal case was tossed. That solves one problem.

But it creates another problem, that of a law professor starting a lawsuit that might have some pretty dubious merit (see below). And that isn’t so hot if you’re working the law professor circuit.

Working under the assumption that what Jones truly wants is his name back, and not $22 million, then the resolution of this dispute would seem to be pretty straightforward.

First, ATL publishes an “oops” (assuming they knew about the dismissal). Not for posting the initial stuff, all of which is likely protected under the First Amendment. Rather, I’m going to guess that someplace in the pit of his stomach, ATL founder and editor David Lat probably feels that if he is going to skewer a law prof that was arrested in this manner, that he probably ought to update his readers with news that the charges were dismissed. That doesn’t go to any legal duty, but to human nature. It’s just the right thing to do. So it may be that a mea culpa is in order for not updating the story in a more timely fashion.

(Of course, if they didn’t know, that wouldn’t apply.)

Prof. Jones, it should be noted, also wants the old posts taken down. I don’t see ATL and Lat caving in to that demand. But, if they elect to write a new post updating the status of the criminal charges, then those old posts should probably have an updated link at the bottom referencing the new post. Bloggers run these types of updates all the time.

So I’m going out on a limb here to suggest that if ATL runs an update on the charges being dismissed with a mea culpa (if that part applies) on not telling its readers earlier, that would probably suffice. Since that is the type of update should probably be done anyway now, and there is no downside to ATL and Jones has his reputation updated.

On the flip side, if ATL makes a motion to dismiss (and I presume this is already being worked on) and Jones loses, he doesn’t look so hot as a law prof. So Jones has a pretty good motive to accept those terms.

And if the two of them want to talk this over in a local tavern, I’ll buy the beer.

Others opining on the subject:

• Law Professor Sues Above the Law Blog, Alleging ‘Viciously Racist Series of Rants’ (National Law Journal)

• Law Professor Sues “Above the Law” (Michael Krauss @ Point of Law)

• Law Professor Sues “Above the Law” blog; Time to go back to complaint-drafting school (Copyrights & Campaigns)

• Blog Sued: Above the law.com not above the law (Law and More)

• Law Prof Sues Above the Law, Claims ‘Racist Series of Rants’ About His Arrest (ABA Journal)

• Lawsuit of the Day: Jones v. Minkin (Above the Law)

• Prof. Donald Jones’ Lawsuit Against Above The Law (Eugene Volokh @ Volokh Conspiracy)

—————-
Update (11/4/09) Prof Jones has wisely dropped the lawsuit

Links to this post:

Marc Randazza, My Weird, Scary Hero
We’d have covered the lawsuit filed by University of Miami law professor Donald Jones against the legal gossip site Above the Law yesterday, except that we were busy. And everyone else got to it first. Suffice it to say that the lawsuit …

posted by Patrick @ November 04, 2009 5:04 PM

LAW PROFESSOR SUES ABOVE THE LAW BLOG FOR “NUTTY PROFESSOR” POST
Parody image reference–with apologies to Jerry Lewis and Eddie Murphy. University of Miami law professor D. Marvin Jones —who made the pages of this blog when he was arraigned on charges that he allegedly solicited a hooker—is back in …

posted by Blogonaut @ November 03, 2009 12:07 PM

Monster Energy Drink’s lawyers seem intent on living up to their product’s monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish… I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well… it was odd. Think citrus + medicine. Yum! There wasn’t a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn’t quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don’t think I’d want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the long short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don’t even make beer.

But that didn’t work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

• Corporate monster picks on ‘Vermonster’:
  

  Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about “frivolous” lawsuits and demanding new laws to prevent people from suing big corporations.

• Some Kind of Monster: Vermonster vs. Monster:
  

  All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art’s Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

• A Corporate Monster vs. “the Vermonster”:
  

  Chance are that you’ve seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: “Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.

• MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:
  

  I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

• Why Monster’s Trademark Claims Against Vermonster Stink
  

  Hansen’s argument, however, is weak for several reasons. First, why would anyone believe that a product named “VERmonster” — a mark alluding to the state of Vermont — is affiliated with Monster energy drinks? Second, the term “monster” isn’t exactly distinct to Hansen’s energy drink. In fact, we correlate the term “monster” with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it’s doubtful that Hansen has a viable argument that Rock Art’s “Vermonster” causes a “likelihood of confusion.”

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you’d appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.))

Perhaps you think my comments made lead to some confusion in the marketplace as to your actual ingredients. But that’s unlikely, since I don’t presume that readers of this blog are total morons.

I know that I shouldn’t have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.

Two New York blogging attorneys found themselves in a decision today out of our highest court, in Stern v. Bluestone. Andrew Bluestone writes the New York Attorney Malpractice Blog, and was sued when he sent his newsletter via fax to local attorneys. He was defended by Scott Greenfield, of Simple Justice fame, who argued the matter in the Court of Appeals.

And since SCOTUS nominee Sonia Sotomayor may play a roll in the First Amendment issues I’m about to discuss, this could be particularly interesting.

Bluestone was sued by Peter Stern, another local practitioner, for violating a federal law (the Telephone Consumer Protection Act) that prohibits using a fax for unsolicited advertisements. But was his newsletter regarding attorney malpractice an advertisement for his services? Both the Supreme Court (our trial level court) and the Appellate Division, First Department (intermediate appellate court) said it was advertising. You can read some of that prior blogospheric commentary here:

• Judge Rules Attorney’s Faxes Are Prohibited Advertising (NY Law Journal, 9/6/06)
• Bloggers Head to NY High Court As Both Defendant and Counsel in First Amendment Lawyer Advertising Battle (2/1/08 on this blog)
• $21,000 Award Upheld Against Attorney Who Faxed Unsolicited Ads (NYLJ, 2/4/08)
• What a $21,000 Award Against a Lawyer for Unsolicited Faxes Might Mean for Bloggers (Carolyn Elefant @ Legal Blog Watch, 2/4/08)
• Is the How Appealing Blog “Commercial Speech” and Thus Less Constitutionally Protected? How About This Blog? (Eugene Volokh @ Volokh, 2/6/08)

Most troubling about the First Department decision was this:

While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone’s services, which are for the specialized field of legal malpractice claims. . . .

Contrary to the dissent’s viewpoint, Bluestone’s motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed “commentaries” are not just information with an author’s name attached, but include the name of the author’s law firm and direct readers to his web sites which advertise his professional services.

Why is that troubling? Because blogs may also come under regulation from New York’s advertising and anti-solicitation rules, albeit it in a different context. As Greenfield noted back on his own blog in February 2008:

The significance of this case has nothing to do with the manner in which it was transmitted, but something far more insidious and troubling for lawyers. It was held to be advertising, for only commercial solicitations fall within the TCPA. With the changes in flux for New York lawyer advertising, this decision could have a disastrous impact on lawyers and their exercise of First Amendment rights.

Every blog that has a name on it, in other words, could be deemed advertising. There are a bazillion shades of gray between an article that appears in a legal journal and what you read here. How, exactly, does a court make that determination of what the primary purpose of the publication is?

But today the Court of Appeals reversed, holding that the newsletter is not an advertisement. The Court noted that the FCC had this opinion on the subject of what is, or is not, an advertisement:

so long as the newsletter’s primary purpose is informational, rather than to promote commercial products”

The Court then went on to decide that:

In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, “[a]n incidental advertisement” of his services, which “does not convert the entire communication into an advertisement”

But this leaves an issue hanging: Who decides what the “primary purpose” of a blog or newsletter is?

It’s worth noting that that exact phrase is part of New York’s anti-solicitation rules. I started writing about it in February 2007 when the new rules went into effect (See:Who, Exactly, Must Comply With New York’s Attorney Advertising Rules? and more on the subject as a whole here: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.)

With so many potential shades of gray, it seems that if and when the issue is ultimately litigated, we will be faced with Justice Potter Stewart’s famous words regarding the definition of pornography, for it seems equally applicable in the context of deciding what is attorney advertising and what is not when it comes to blogs:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

So when will it be ultimately litigated? Hold on to your hats….the issue of New York’s new anti-solicitation rules is now before the Second Circuit. And Justice Sonia Sotomayor was on the panel that heard the case.

Elsewhere on today’s ruling:

• Newsletter Doesn’t Become an “Advertisement” Just Because It Implicitly Promotes the Author’s Professional Expertise (Eugene Volokh)
• N.Y. High Court Finds Attorney’s Unsolicited Faxes Did Not Violate Communications Act (NYLJ via Law.com, 6/12/09)
• Attorney Newsletters and Liability for Unwanted Faxes (Full Court Pass)
• We’re Not Just Self Promoters (Greenfield @ Simple Justice, 6/13/09)

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Full disclosure: I know both Bluestone and Greenfield, and both have appeared in my blogroll for the last couple of years.

Links to this post:

shingular sensation scott greenfield wins landmark victory …
on june 9, 2009, new york solo and simple justice blogger scott greenfield won a unanimous, landmark ruling from the the new york court of appeals in stern v. bluestone, which ruled that unsolicited, informational faxes distributed by …

posted by loce@his.com (Carolyn Elefant) @ June 15, 2009 7:23 AM

POSTS WILL RESUME SHORTLY
It seems like I’ve been saying that alot. I’ve been busy. For some reason these past few months have been full of assignments, projects, and two line emails that require two hours of work. Court has been especially busy as well. …

posted by . @ June 13, 2009 5:01 PM

post-hiatus supreme court stuff…
it’s been a long time, i shouldn’t have left you… (anyone who can finish that sentence wins a prize!) i have been on a bit of a hiatus while i concentrated on completing my fellowship at the drum major institute for public policy. …

posted by Kia Franklin @ June 12, 2009 6:08 PM

A former cop named Jim Donahue stupidly decided he would send a take down demand to criminal defense lawyer Scott Greenfield of Simple Justice fame. If there is a contest out there for dumb mistakes, Donahue will take the gold. And Greenfield will take the platinum for his response.

It seems Donahue wasn’t too happy that other cops treated him as a mere civilian, instead of giving him preferential treatment. Those other cops should have known he was a cop, he whined at Officer.com, since:

I am wearing my only sweatshirt, which has a breast emblem from my previous department in Michigan. I just got my “high & tight” haircut tuned up yesterday. It would not be a great leap of faith to think that I may be a retired cop, a current cop, or minimally, related to law enforcement based upon my appearance and demeanor.

So Greenfield wrote the story up last December, using his picture that you also see here to show the unmistakable awesomeness of the “high and tight.” And Donahue then made the grave mistake of “insisting” that Greenfield surrender his First Amendment rights to him and take down the picture: Greenfield’s response? He deservedly chewed up Donahue and spit him out. You’ll have to go to his site and read Drop the Photo or I’ll Shoot for the rest, but here’s a taste:

You put your appearance in issue, and I used your photograph to make the point. Don’t like having it on a scummy criminal defense lawyer blawg like this? Bummer. Be a man and take it, you wussie with your “high and tight” hairdo. You were tough enough to call out other cops for not treating you with the respect due a fellow officer, but not tough enough to bear having your image shown to the public you pretend to serve and protect? Exactly.

No one will ever accuse Greenfield of equivocating in his response, telling said former cop to “bite me.” And that was the most polite part of his stomping of Donahue, who no doubt is used to people following his orders. Donahue also has probably never had anyone call him a “big-mouthed blowhard” that is also “an ignorant, hypocritical poster boy for people who are undeserving of a shield and gun.”

The post is an instant classic.

Winner: Greenfield by knockout in the first round.
Lesson: Don’t mess with Greenfield. Even if you do sport a “high and tight” hairdo.

Update: Donahue may not be a former cop after all.

New York’s 2007 lawyer advertising rules will be before the Second Circuit today (NYLJ: 2nd Circuit to Hear Arguments on Lawyer Ad Restrictions). In 2007, many of the restrictions had been struck down by a federal judge in Alexander & Catalano v. Cahill, though one particular restriction — the 30-day anti-solicitation rule — was upheld. (Decision and briefs here)

This posting discusses how the anti-solicitation rule can be circumvented and why it causes First Amendment problems in certain circumstances due to the breadth of its definition of solicitation. Indeed, under the rules, this very posting could qualify as an ethical violation as I use the US Airways Flight 1549 splash landing in the Hudson River as a case example on how the solicitations can occur. In fact, the ethics rule is so full of holes that it would sink in a true disaster.

Any Internet savvy lawyer can easily beat the rules by making agreements with legal marketers from outside New York. I refer to the work-arounds as Ethics Laundering. If New York wants its anti-solicitation rules to have any real effect, it will have to more fully appreciate how the Internet has altered the field of attorney marketing, how the ethics rule can be laundered, how they may violate the First Amendment, and deal with it appropriately.

By way of background, the 30-day rule came into being in the wake of the 2003 Staten Island Ferry disaster that killed 11 people. While rescue efforts were still underway, lawyers raced to the Staten Island Advance to place ads in the paper before the afternoon deadline for the next day’s paper. It was not the personal injury bar’s most shining moment.

The new anti-solicitation rules, which cover more than mass disasters but that seems to be where the real problem lies for online solicitation, went into effect on February 1, 2007 after a period of comment. Here’s the text:

DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death

(a) In the event of an 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, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident 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 easiest place to start analysis of how the rule works is with direct solicitation, and then work through several examples of the more troublesome indirect solicitation that serve to launder the ethics involved. While direct solicitation has, in the past, generally dealt with direct mail, this positing will deal solely with Internet related marketing.

Bear in mind that, because no lives were lost on the US Airways crash, and because a flock of birds seems to be the leading cause, we were not swamped with ads. Thus, this piece is written in advance of the full implementation of the rule, while the matter is pending in the Second Circuit, with the hope that the rule can be modified to take these devices into account.

First, direct solicitation can take place with simple Google AdWords. Those are the ubiquitous ads you see on top of the natural search results or in the right hand side bar when you Google “personal injury lawyer” or most any other service or product known to the human race. People and companies, working through Google, submit words or phrases that will trigger the ad. Those keywords don’t have to be part of the ad. For instance, a generic personal injury ad may run, but there may be hundreds of keywords that trigger it regarding medical malpractice, drug interactions, car or labor law accidents, etc. Where you land in the advertising results, be it in the first position on the first page or buried on page three, depends on how much you bid for the particular keywords you used.

So in the wake of the Hudson River crash, I searched around and found one firm that seemed to blatantly violate the ethics rule, according to my reading, by actually using these words in addition to the firm’s website link:

USAirways Crash Victim?
Helping Victims of Flight 1549
[Law firm link redacted]

But not all such solicitation is so obvious. How about the firm that uses the keywords “Hudson River” and “1549″ to get placement of their aviation law firm in the Google results, but doesn’t mention the particular accident in the ad that the public sees? In this manner, law firm marketers get their ads placed under the noses of searching victims in violation of the rule, but without making it obvious. Catching these people requires someone actively looking for the violations by ignoring obvious keywords (aviation, airline, attorney, etc.), and then subpoenaing Google to get the list of keywords from the lawyer’s account.

Another trick is to simply modify the website of a firm and lard it with keywords for Google to index. Is that a solicitation in violation of DR-711? According to Ethical Consideration (EC) 2-18 of the rules:

A “solicitation” means any advertisement:
a) which is initiated by a lawyer or law firm (as opposed to a communication made in response to an inquiry initiated by a potential client);
b) with a primary purpose of persuading recipients to retain the lawyer or law firm (as opposed to providing educational information about the law) (see EC 2-6(c));
c) which has as a significant motive for the lawyer to make money (as opposed to a public interest lawyer offering pro bono services); and
d) which is directed to or targeted at a specific recipient or group of recipients, or their family members or legal representatives. (emphasis added)

Does the act of adding the text of the accident to an existing website mean that it is an ad “directed to or targeted” at the victim group? It would seem so, since the definition of “directed to or targeted” means that it is referring to the target group. The definitional text for the phrase is under Ethical Consideration (EC) 2-19(c):

“…an advertisement in a public medium such as newspapers, television, billboards, web sites or the like is a solicitation if it makes reference to a specific person or group of people whose legal needs arise out of a specific incident to which the advertisement explicitly refers.”

If all one needs to do is “make reference” to an accident, then it seems to create a troubling constitutional issue. What is to stop a firm from putting an “in the news” item on their web site that deals with Flight 1549 (or a big construction accident or other event) that just so happens to tickle the magic Googlebots with the “correct” keywords for the victims to find them? The result, it seems, would be a clear First Amendment battle.

The same issue may exist for a blogger who writes about local accidents in the hope that someone will Google the accident and find the firm (see: Attorney Solicitation 2.0 — Is it Ethical?). While this can be a very crude and obvious device, it nevertheless also runs into the same First Amendment issue. Even a subtle mention of the accident — I did make reference to US Airways flight 1549 in this article didn’t I? — might trigger the rule in the eyes of some. There are a million shades of gray between the obvious and the subtle in determining which blogger is trying to add to the discussion of an issue and which one is hustling business.

The solution here may be well beyond anything that the courts can do by way ethical rules due to constitutional constraints. It thus becomes up to writers to speak up when they see these things happen in the hope that public humiliation will stop the conduct, as the implied threat of destruction to one’s Google reputation can be a powerful incentive in the digital age. While the briefs and lower court opinion in today’s case didn’t go into the level of detail I have here, one can clearly see how the rule may not be workable.

Now moving on to the more secretive and, I think, insidious types of advertising: The attorney search services. These are web sites that are not affiliated with any one law firm, with charming names like WhoCanISue and SueEasy, that run ads trying to attract potential clients. Leads are then distributed by the company to attorneys, whose names do not appear anywhere on the website. There are dozens of these companies out there, and I regularly get calls and emails from them. One called PleaseGetMeAnAttorney, for example, sent me an unsolicited email that offered to provide leads at “$3,995.00 per territory, per month.”

These attorney search services are particularly diabolical from the ethics standpoint. They are unlikely to have their home in New York and may not even be run by attorneys. They therefore will fall well outside any jurisdiction that New York courts may have to discipline for ethics violations. They can advertise free from any constraints and may skate right off the edges of the ethical pond. But what of the attorneys that have signed up with them? They, no doubt, turn a blind eye to the devices used by the companies and will cry ignorance if confronted.

And very similar to the attorney search services are the “national” law firms that are little more than referral mills. They seek to sign up clients the same way the attorney search services do, but instead of getting paid a flat fee for leads they will receive a piece of the legal fee if the matter successful, as part of a joint venture with local counsel.

How, exactly, is New York going to stop these outside lawyers and search services from soliciting in New York and laundering the ethical rules that local counsel must abide by? Well these outsiders are theoretically subject to New York’s anti-solicitation rule under EC-221:

Extra-Territorial Application of Solicitation Rules

EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.

But if the Second Circuit upholds the constitutionality of the 30-day rule, how will enforcement actually take place for the attorney that is not admitted in New York? And has a New York lawyer committed a violation by accepting the case from the outsider that violated the rules? And how is the New York lawyer supposed to know that the out-of-state referring lawyer or search company violated the ethics rules?

I suggest that the Office of Court Administration use the Retainer Statements to catch the ethical launderers. Those statements, that must be filed in every personal injury case taken on contingency, require the retained lawyer to specify who the referring sources are, be they attorneys or not. In the event of a tragedy that triggers the rule, OCA must anticipate the problem and do an immediate web search to see who is violating the rules, then cross-check that list against the incoming Retainer Statements. The rules must be clear now that, if the referring lawyer or service violated the anti-solicitation rule, then the matter will be forwarded to the disciplinary committee.

There should be little doubt that search services, as well as non-New York Lawyers that solicit here for the purpose of entering into joint ventures with local counsel, are agents of the law firms and that local counsel must therefore be accountable for the acts of these agents. For only by forcing accountability on local counsel will they, in turn, demand ethical conduct from the search company or New York outsiders. If local counsel understands that they may lose their fee after having done substantial work, they will more than think twice about whom they do business with.

This is not, by any means, a plea to get rid of the 30-day anti-solicitation rule altogether. Solicitation is ugly and a blight on the profession. Rather, it is a plea to clean the rule up, either before or after the Second Circuit decides, and make it clear that attempts to circumvent the rule by laundering the ethical issues will not be tolerated. And that is something that should be done now, and not after a real disaster.
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Photo credit: Jordan Husney (via Flickr)
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Update 1/23/09, After the Second Circuit Argument: 2nd Circuit Skeptical Over Restoration of Rules Curbing Content of Ads (NYLJ via Law.com)

Links to this post:

I’ll Take Turkewitz on Ethics Over Jack Marshall Any Day of the Week
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posted by loce@his.com (Carolyn Elefant) @ March 17, 2009 10:41 PM

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posted by Walter Olson @ February 03, 2009 1:11 PM

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