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.

Labels: Alexander v. Cahill, Attorney Ethics, First Amendment

Detroit attorney Carl Collins III has paid a $5,000 fine for chasing victims in the wake of the February 2009 crash of Continental/Colgan Flight 3407 near Buffalo, according to The Detroit News. According to the US Attorney's Office he sent letters out to victims' families 12 days after the crash, in violation of federal law that bans solicitations within 45 days of air disasters. This is the second such settlement regarding the crash, with New Jersey attorney Richard Weiner having likewise been fined $5,000 for chasing clients with letters.

Both of these actions came from federal authorities. New York has its own 30-day anti-solicitation rule (for all mass disasters), which applies to out-of-state attorneys as well. New York has thus far been silent on the issue of whether anyone has been pursued for violations.

The chasing was a big topic for me early in the year, as I tracked a string of law firms that started to electronically chase clients by running Google Adwords, before pulling the ads after they were exposed. You can read those posts at this tag: Buffalo Air Crash. This air crash was the first true test of New York's 30-day rule that went into effect in February 2007. The 30-day rule was not affected when other parts of the new rules were tossed out by a federal judge in July 2007.

Some of those ads had been run through various marketers, with the effect that lawyers had outsourced their ethics along with their marketing. I had discussed the concept of such ethics laundering to beat New York's 30-day anti-solicitation rule a year ago.

As of today, I am not aware of any attorney having yet been sanctioned for such e-chasing (which I covered two years ago in Attorney Solicitation 2.0 - Is It Ethical?) but that day is surely coming.

My thanks to Buffalo attorney Roy Mura, of Coverage Counsel fame, for passing on the Detroit News story.

Labels: Attorney Ethics, Buffalo Plane Crash

Demonstrating that, perhaps, there is no sewer deep enough for it to descend into, FindLaw has used the death of a child to promote the services of the lawyers that pay them fees.

On its Philadelphia Personal Injury Law Blog (coded as "nofollow" so that site doesn't get Google juice) FindLaw's writer, Emily Grube, re-hashes the tragic accident of a nine-year old that was hit by a car while playing with its scooter. After the re-hash comes this deep-thinking analysis:

There are many difficult questions about this case: Was the driver aware that she hit White? Was she aware that he was under the car? Did she continue to drive in an attempt to flee the scene?

Truly profound. I know I feel more educated having read it. At the end of it comes the call-to-action: "If you have been involved in a similar situation such as a hit and run, or a pedestrian injury, you could discuss your possible personal injury case with..." blah, blah blah

The "blog" is one of the dreck-blogs that I wrote about previously (Are FindLaw's "Blogs" Tainting Its Clients, Commentators and the Profession of Law?), that offer little content beyond repeating a local story, making damn sure the name of the victim is repeated in the event the victims (or their survivors) Google the event, and ends with a call-to-action. There is, of course, no comment area since discussion isn't the point of the ad.

(If the name of the writer sound familiar, Ms. Grube also writes dreck-blogs for other FindLaw sites, having apparently left what little dignity she may have been born with in the dust.)

In my prior posting, FindLaw was using dead adults in its pseudo-blogs, which appear as little more than ads designed to chase clients. The extent to which such ad-blogs violate local ethics laws has yet to be explored by any ethics committee that I know of, though surely that day is coming soon.

So who sponsors this kind of crap? When you click their link, these are the firms I found at the top of the link, that would benefit from FindLaw's use of dead children in its ads:

The Law Offices of Eric Strand
West Chester, PA

Law Offices of Basil D. Beck, III
Norristown, PA

Law Offices of V. Erik Petersen
Harleysville, PA

Hark and Hark
Philadelphia, PA

Law Office of Henry S. Hilles, III
Norristown, PA

So long as lawyers continue to pay money to FindLaw for its services, this will no doubt continue. (See, FindLaw, How To Leave and Save Your Reputation.)

And the continued existence of such crap will continue to hurt the legal community and our clients, and make it even more difficult to find objective jurors.

Lastly, it's worth noting that Mark Bennett had previously published a partial list of New York attorneys that were supporting this kind of conduct (Call This Notice). Yet FindLaw continues, and subjects more of their clients to being associated with its ugliness. So it appears that FindLaw doesn't really care about the reputations of the very people that hire them. Considering that FindLaw is the agent of these firms, that's important.

The only way for FindLaw's clients to preserve their reputations appears to be to ship out, because it doesn't appear that FindLaw will shape up.

Labels: Attorney Ethics, FindLaw

J'accuse.

In looking at FindLaw's new gaggle of so-called "blogs" that are little more than crappy search engine fodder and client solicitations, I struggled to find the right word to describe them. The ramifications of these crap-blogs are important, because FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole. And because this is likely to be a source of discussion going forward, it also means these so-called "blogs" need an appropriate name.

Just as the two-week holiday started, I noted that FindLaw ripped-off the name of my blog, recently creating their own New York Personal Injury Law Blog. (Link coded as "nofollow" to avoid giving Google juice). But the problem, as noted by others, isn't just that they ripped off my name, but that they did so with unadulterated dreck. That was one of many new, similar sites that they created.

To be clear, dreck-bloggers aren't interested in creating good content, they simply regurgitate local accident or arrest stories and place a call-to-action link at the bottom. Posts are filled with buzzwords to game Google that, if coupled with the call-to-action for a recent event, places them firmly in the camp of Solicitation 2.0, a subject I dealt with two years ago. Put bluntly, many of these dung-blogs are electronically soliciting clients. E-chasing, for lack of a better word.

In this posting, for example, FindLaw re-writes the story of a local accident that killed four and injured two, and in just the third sentence its author spits out:

If speed was the factor that caused this collision, then the families of the victims (and the surviving victims themselves) could hire a New York injury attorney to sue the person responsible.

The author made sure to name each of the deceased, provided two separate links back to the list of lawyers that pay FindLaw, and included a call-to-action. (If you have suffered a personal injury...blah, blah, blah.) There is, of course, no natural audience for such a "blog." The postings do not allow for comments, nor is there any attempt at creativity or analysis.

An example of how FindLaw prostitutes itself to the alter of Google -- FindLaw's prior reputation and quality writing in its Writ commentary be damned -- is in the "about" section. They place 97 words in two sentences of which a remarkable 37 are keywords, to come up with this contorted piece of SEO "writing":

The New York Personal Injury Law Blog covers news and developments in the area of personal injury and tort law in New York state, and New York City specifically, and helps to connect people with New York injury lawyers. The New York Personal Injury Law Blog is intended to serve as a resource for people working through a personal injury issue in New York, or those who are interested in New York personal injury and tort law generally, including New York personal injury attorneys who wish to keep up with the latest news developments.

[Note: I wrote about the problem of keyword clutter previously in I Hate My Website.]

As Scott Greenfield puts it at FindLaw Plays Dirty (where he warns others of FindLaw stealing their well-known blog names):

These aren't blogs, of course, in the sense that we understand them. There are mere names designed to trade in on search engine keywords, and capitalize on Findlaw's SEO ability to get their scam blogs higher than yours on the search engine's first page.

And as Sheryl Sisk puts it in Findlaw vs. NY Personal Injury Law Blog: The Opening Salvo:

Let's be clear. This isn't a case of innocently or mistakenly adopting a geocentric keyword-rich blog name. Findlaw's not staffed by idiots. They knew what they were doing.

What are the consequences of FindLaw's folly in creating such sites? 1) it demeans the lawyers that paid them for listings, who are now associated with the scat-blog; 2) it diminishes the work of the professor-commentators at Writ that they currently use; and 3) it brings down the legal profession as a whole by legitimizing such conduct. Let's take these one at a time:

First, it demeans the people that hired this once-prominent company to market for them. Marc Randazza, on seeing Findlaw's mierda-blogs, wrote in Findlaw, are you really that douchetastic?:

They hired a milquetoast writer to author a milquetoast blawg for the sole purpose of selling ad space to sh*tty lawyers who can't develop a reputation on their own.

Ouch. Now I happen to personally know some of those lawyers on the FindLaw list, and know that they are fine lawyers. I'm sure they had no idea that FindLaw would associate garbage with their names when they hired the company as their agents.

But you know what? Others don't know that. And by creating a turd-blog and associating it with those lawyers, potential clients will come to the exact same conclusion as Randazza. And they will believe that those otherwise reputable lawyers agreed to be part of this ugliness.

And Randazza has more (he always does):

Here's a rule of thumb... if a blog post ends with "for more information, contact the lawyers at Douchestein and Dickwadbaum," then it is an advertisement, but, it isn't advertising the lawyer's services. It is advertising that lawyer's stupidity, desperateness, and cluelessness. I would advise any potential client who sees a "blog" that ends its posts that way to turn around, run away, fast as you can, and do not look over your shoulder.

To the lawyers that paid money to FindLaw: You've just been sucker-punched. You outsourced your marketing to FindLaw and this is what they created for people to find you. Worse still, some of FindLaw's posts may qualify as electronic ambulance chasing. We're talking serious ethical issues here with e-chasing, and I wonder who the lucky lawyer will be that becomes the test case. When you outsource your marketing you outsource your ethics.

Second in line to get clobbered are the professor-commentators on its roster, such as Anthony Sebok, Marci Hamilton, Michael Dorf, Carl Tobias, Sherry Colb, Joanna Grossman, Neil Buchanan, and Julie Hilden, to name a few.

All of their work on FindLaw's Writ has now been instantly devalued and diminished by being associated with the BS-blogs that FindLaw created. Once upon a time it was a feather in the cap to be published by West's FindLaw. Not any more. Do they care?

The professor-commentators now stand side-by-side with Emily Grube -- the author who appears at several of the sites despite the fact they vary both by practice area and jurisdiction-- whose bio says she is a "writing specialist" with "experience correcting papers created by freshmen to graduate students."

Perhaps it's understandable that FindLaw couldn't hire more lawyers to write about the law, given this tight job market with firms now at capacity, actively recruiting and unemployed attorneys so difficult to find. It's not required that a law blogger be a lawyer of course, as Walter Olson of Overlawyered and Point of Law demonstrates, but it just makes it a lot easier to recognize and discuss relevant legal issues.

It's worth noting that many others stood up and took notice of FindLaw's ugly conduct -- during a holiday week, no less -- including: FloridaLegal, Molly McDonough (ABAJournal), BlawgWhisperer (ABAJournal), Ron Coleman, Kevin O'Keefe, Nicole Black, Don Cruse; Lawrence Koplow; Tim Hughes; Copeland Casati; Ryan Daniels; Lydia Bednerik; Kevin Underhill; Gerry Oginiski; A Reasonable Suspicion; and Roy Mura. Some of those folks, also happen to have prominent blogs that FindLaw might rip-off next.

Lastly, and perhaps most importantly for the legal profession as a whole, FindLaw may have taken a smallish problem with a haphazard smattering of phony "blogs" that have popped up over the years, and given them (and newcomers) cover to act in the same unprofessional manner. Instead of raising the bar of discourse for lawyers they have lowered it. For if one of the pre-eminent names in the legal field thinks it's OK to create a farkakte-blog (and you may have to hit that link unless you know a smattering of Yiddish), what message does that send to other lawyers? To the public? Is FindLaw now so desperate for business, so fearful of Martindale-Hubbell, Avvo and Google Scholar, that they are willing to race down to the muck and tarnish us all?

Greenfield wrote that:

For those of you who have placed their reputation in Findlaw's hands, be prepared to be tainted by the company you keep.

But I think it is actually worse than that. While such dirt-blogs were previously confined to desperate lawyers here and there, FindLaw now opens the floodgates sewergates for lawyers to create slime for the web, for if it's good enough for the once-vaunted Thomson West, it's good enough for them.

Now if I could only find a good word to describe FindLaw's number-two-blogs and their ilk. I know there's a good one out there someplace. When others find that word, I'm sure it will hit the fan.

Labels: Attorney Ethics, FindLaw, Marketing

Martindale-Hubbell previously reported that it suspended a company that sent comment spam to blogs, of which mine was one. They also offered a full accounting of the episode.

Today they confirm that the spammer has not just been suspended, but that they "have subsequently stopped working with them." At my invitation, they have now given an accounting of the incident.

What follows is an email from Derek Benton, Director of International Operations at Martindale Hubbell International on the subject. My comments follow his email:
-----------------------------

"In late September, the UK Martindale-Hubbell team hired an agency to help us drive traffic back up on our co.uk. site. SEO was a core component of this program as a new directory structure for the site had caused significant issues with our organic rankings. It was our understanding that we would get to approve everything the agency did on our behalf, however unfortunately in this instance that did not take place. The agency we worked with, or an agent acting on their behalf, unfortunately posted some garbage comments without our knowledge.

We do not condone spamming under any circumstances, and once we discovered that these generic posts had gone out we immediately instructed the agency to halt all work on our behalf, and have subsequently stopped working with them. As we mentioned, we have also requested that the agency provide us with a list of all blogs affected so that they can be contacted individually.

Bottom line: we take this as seriously as you do. There's absolutely NO long term benefit to us from spamming sites. One way or another it's going to fail you in the end. We're here for the long haul, and are fully aware that there are no legitimate short cuts. We've learnt an important (and somewhat painful) lesson about working with 3rd parties, but we're confident that it's one that will help us in the long run, even if it stings a little right now."
-----------------------------

There are two interesting things about this episode. First, that Martindale-Hubbell says it is common practice to outsource attorney marketing to others, and second, that MH seems frantic after having been knocked off its #1 perch by upstart Avvo.com.

First to the outsourcing: In the Q&A that I did with Benton was this exchange about outsourcing their own work to British company called Conscious:

ET: After MH outsourced to Gilroy's company [Conscious], did Gilroy outsource it elsewhere?

DB: Yes he did. Outsourcing is a common practice to help reduce labour costs.

As I've intoned before, attorney ethics and marketing are deeply connected. So when marketing gets outsourced, so do ethics. But the acknowledgement by MH that it is "common practice" for the attorney search services to, in turn, subcontract out the marketing they were hired to do, means that attorneys hiring a marketing company essentially run the "common" risk of their ethics being outsourced to low-cost mystery marketers.

Is that where you want your ethics to go, to the lowest bidder in the SEO marketing world? Because that appears to me to be part of the "common practice."

It's also worth noting that the "experts" in the attorney marketing world include disbarred or inexperienced attorneys.

Who, exactly, can you trust, when even the largest of attorney search companies feels it's OK to send your ethics to the low bidder?

The second thing worth noting is the desperation of MH to reclaim its top spot in the attorney search arena as they worry about becoming an endangered species. Because there are beaucoup bucks to be mined from people that will -- notwithstanding the risks of outsourcing their ethics to strangers hired on the cheap -- ask others to advertise for them without understanding the ramifications.

If you hadn't noticed, Avvo appears to have surpassed MH's lawyers.com in the number of unique visitors they get each month. One of those two companies isn't happy about that.

Of course, if you look at Avvo's site, you'll see that it is missing the "attorney advertising" mark that New York says is mandatory for attorney web sites.

It's like the wild west out there.
-------------------
Addendum 12/18/09 from Denton via email:

Eric - Thank you for giving us the opportunity to tell our side of the story. Unfortunately, in your accompanying commentary you asserted that "Martindale-Hubbell says it is common practice to outsource attorney marketing to others." That is not at all what we've said or done. The agency we hired was engaged to provide SEO services to our co.uk. site -- not to fulfill any marketing services for lawyers.

My response: SEO and attorney marketing are interrelated.

Labels: Attorney Ethics, Marketing, Martindale-Hubbell

Five months back there was a Metro train crash in Washington DC, and I watched from a distance to see who/how/where/when the web would be used by lawyers to find victims. And one of the things we saw was that one of the gazillion attorney search firms that infect the web was soliciting clients. Given that these search firms are agents of the lawyers, that raised the problem of attorneys using the web to solicit.

Thus was born this little formula in June: outsourcing marketing = outsourcing ethics. This wasn't, by any means, the first time I'd appreciated the problem of outsourcing marketing, having written about the ethics of attorney search services two years ago:

The implications of attorneys outsourcing advertising to a third party that may be acting unethically represents an area of law that is unexplored by many ethics committees.

The implications of being the test case are not pretty, and there after now five lawyers in Connecticut feeling the heat, as the state tries to decide if they violated local ethics laws by paying referral fees to the non-attorneys at a site called TotalBankruptcy.com. Some of the discussion goes to differentiating between a mere advertisement like a Google ad, and a "referral" from a search site after it takes in information from the consumer and then spits out a name.

For more on that, you can read Carolyn Elefant (in defense of the five), Scott Greenfield (calling the search service a cancer in the legal profession), Mark Bennett (suggesting disbarment, not saving), Josh King (the rules are unconstitutional), Larry Bodine (looking at the attorney who filed such complaints in 47 states) with both Bob Ambrogi and Colin Samuals doing extensive analysis of all the commentary.

It sucks to be a test case. It's one of those things lawyers should aspire to avoid.

It wasn't my intention to coin a phrase regarding this kind of stuff six months ago when I wrote about the train accident and the solicitation, but several others have now picked up that theme so it's worth expanding on.

When lawyers outsource their marketing to others -- be it a "search engine optimization" company, an attorney search company, or some hybrid -- they are hiring agents to do their advertising. Agents. We learned about that stuff in law school. The concept has a long and deep legal history. The web didn't make it go away.

And when it comes to the web, these are five things that those agents might be doing in your name that can get you in big trouble on the web, because attorney ethics are deeply intertwined now with marketing:

• You are accused of sharing legal fees with non-lawyers (See Connecticut Five, above).

• The agents solicit clients in violation of ethics rules (See Metro train crash incident);

• They could spam blogs with your firm name;

• They could scrape content from other blogs (or news sources) and post it as yours, thereby violating copyright laws in your name,

• They could circumvent rules by engaging in ethics laundering.

It's interesting to note that simply going out and hiring a high-profile marketing company won't necessarily help you. For instance, Avvo is one of those find-a-lawyer sites, that also has reviews of attorneys. They've made a big splash and are as tech-savvy as anyone. Yet, if you go to their site, which now looks for attorneys to pay $49.95/month for "enhanced" visibility, you will find that they appear to violate one of New York's ethic's rules that went into effect in 2007.

Which rule does Avvo appear to break? The requirement that "attorney advertising" be placed on their home page, a failure that I noted hit many firms at the time it was implemented. Does an attorney search site need to have that mark on it? I would think so, as they are acting as the agents of the lawyers that hired them.

So what's the downside to all this? Well, the lawyers that hire others to do their marketing might find that company violating copyright law (content scraping) or ethics rules and subject them to litigation. Litigation can be long and expensive.

But it's actually a lot worse than that because litigation takes time and money and many don't want to do it unless they absolutely have to.

Blogging, however, takes very little time and very little money. And if you piss off just one blogger with ethically and legally dubious behavior, s/he might write about you. And put your names in the headlines. And that blogger might have some readers who are also bloggers....And the effect is felt as soon as Google happens to index those blogs; which is to say if they are active bloggers, immediate. When potential clients Google you, the results can be painful.

Litigation can be so passe.
---------------------------------
The list of blogs that have agreed to expose the lawyers that engage in comment spam has been moved to this link: New Spam Comment Policy for Law Firms (You Will Be Exposed)

Labels: Attorney Ethics, Marketing

Seven workers from New York City hospitals and one lawyer were arrested today in a continuing probe by AG Andrew Cuomo regarding the sale of patient information.

The workers all came from city-owned hospitals in the Bronx; six from Lincoln Hospital and one from Jacobi. The lawyer comes from Dinkes & Schwitzer, a Manhattan firm that handles personal injury and medical malpractice matters.

I had covered this probe previously, along with similar matters, here:

Ambulance Chasers, Runners and Other Creeps (August 3, 2009)

Whether these individuals are guilty of the charges against them remains to be seen. If they are not, they should have their names cleared. But if they are, I'd like to see a very long stay at the gray bar hotel.

Labels: Attorney Ethics

Last year I wrote about a start-up called "Sue Easy" that I branded as one of the worst lawyer ideas ever. And given the proliferation of attorney marketing sites out there, that was saying a lot.

But now it appears that the site is up for auction. I can only think of one reason to hold a public auction of a company like this, and that is that it was a miserable failure. One can only hope.

But not to worry. Surely many more people who want to make a buck by trolling for clients will try other avenues. And just as surely, some lawyers will follow those trolls without thinking that by outsourcing their marketing to others that they are outsourcing their ethics.

I get the sense when looking at my email (begging for links or spamming my comments with links), and seeing all the marketing folks out there on Twitter, that there are more people interested in marketing for cases than there are people willing to actually do the work. This is, of course, a skewed perspective from being a blogger and reading much of what goes on in the legal blogosphere. I've never seen any surveys on the subject, but I would guess that most lawyers don't even have a website. And with a million lawyers out there in the U.S., but only about 1-2,000 active blogs, I realize few are active online (at least in public).

But it is this vacuum that also allows the SueEasy's of the world to garner attention and tarnish whatever is still left of the good name of the legal profession, which I fear isn't much. So it is good to see them dry up and blow away. May the same now happen to WhoCanISue.com and any other crappola sites that are similar to them, whose sole reason for existence is to be a front company for others.

See also: Running SueEasy Turned Out to Be Not So Easy (Carolyn Elefant @ Blog Watch)

Labels: Attorney Ethics, Marketing

Today's post is inspired by a trifecta of recent stories on people chasing victims for profit. This includes:

1. New York Attorney General Andrew Cuomo last month indicting 14 people involved in a health care fraud scam involving doctors and at least one lawyer;

2. A Florida hospital employee selling patient medical records to a middle man who turns them over to a personal injury attorney; and

3. Two Brooklyn lawyers, David Resnick and Serge Binder, last week becoming the 13th and 14th lawyers to lose their licenses in a "runner" investigation going back to 1999 (previously here on 8/2/07: New York Personal Injury Attorney Probe Catches Another Ambulance Chaser).

Now every business and every profession has its scoundrels. Regardless of whether the lure is one of the big three of money, sex or drugs, it happens to doctors, lawyers, clergy, schoolteachers and every other group you can imagine. Every race, religion and group of any kind will have its problem participants.

But unlike the police and their Blue Code of Silence or the doctors and their White Coat of Silence, or the priests and their Collar of Silence, I don't ever want to see such silence by lawyers.

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.

When I wrote my first piece on this two years ago, I wrote the following words, which I reaffirm today:

...I know this crap happens and I want it stopped. I have heard it through the grapevine as new clients reported on how they were approached by others after being hospitalized. It is utterly infuriating, and I am pleased that the Manhattan District Attorney is working on the issue. I have often quietly hoped (and today, not so quietly) that District Attorneys in the Bronx, Brooklyn, Queens and Staten Island would follow suit, not only investigating based on tips they receive, but even running sting operations.

Labels: Attorney Ethics

Flashing across my news reader came this from the ABA Journal:

A lawyer for Goldman Sachs has been accused of trying to arrange a sexual tryst with an undercover investigator posing in online chats as a 15-year-old girl.

This, in itself, is not something I would ordinarily cover. He was after all, merely arrested. He has not been convicted of anything.

While the arrested, who is married with three children, certainly has greater issues today than his law license, it is an issue that will come up in a few years if he is convicted.

The question here is: Under New York law, is this a disbarrable offense?

And the answer, apparently, is no. While our appellate courts generally issue unanimous opinions in cases dealing with ethics and lawyer disbarment, last December there was as a sharp divide in an identical case (See: Sex Offender Keeps Law License (Updated)).

The Appellate Division, First Department ruled 3-2 that suspension was in order as opposed to disbarment. You can read the sordid details at the link above.

Labels: Attorney Ethics

On June 4th Sonia Sotomayor released an extensive, completed questionnaire about her past to the Senate, and I picked up on the fact that her solo law firm "Sotomayor & Associates" didn't have any actual associates. This raised an ethical issue, albeit a small one, because it was misleading to the public. The private firm overlapped both her time in the District Attorney's office and her time with her next gig, Pavia & Harcourt.

And there my little post sat, relatively ignored. Until the Washington Times picked up on it in an editorial on June 20th. While I don't agree with their premise that it was indicative of larger issues, it was nice that they at least gave attribution to me for finding the item.

And now today the ethical issue of "Sotomayor & Associates" lands in the New York Times (Little Information Given About Solo Law Practice Run by Sotomayor in '80s.) The Times treats the story as original material to the paper, without giving attribution to others.

The Times has now expanded on the quick treatment that I gave it, and checked with the White House to get more details on the law firm. They found that:

The White House has described Ms. Sotomayor's outside legal work as an informal practice, one that never required her to file legal documents or appear in court. She never incorporated Sotomayor & Associates or registered it as a business in Manhattan or Brooklyn, where she then lived, according to public records, though she was not required to do so.

The Times goes on to quote old-reliable ethics commentator and NYU law prof Stephen Gillers (are there no other ethics attorneys to quote in New York?) as agreeing with me that this was a violation of the ethical rules in effect at the time:

Stephen Gillers, professor of legal ethics at New York University Law School, said Judge Sotomayor's use of the larger-sounding title was "inadvisable because it is inaccurate." He noted that bar associations frown on the use of the term "and associates" by single practitioners. "She could have just said, 'Law Offices of Sonia Sotomayor,' " he said.

[Note to Gillers: If Sotomayor wrote "Law Offices of Sonia Sotomayor" it would also be inaccurate. It would need to be singular, not plural.]

The White House, however, claims that no ethical violation occurred with the use of "& Associates" at a time when there were no actual associates. They responded:

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

Why did I bother with this minor issue to begin with? Because I sometimes write about the practice of law for small practitioners, about legal marketing and its problems, because the nominee fell into that zone of commentary, and because massive layoffs in the legal field were sending folks out on their own. It was meant as little more than a cautionary tale for those starting up their own practices to be careful about over-promoting themselves and running into trouble.

Now if we could turn to the ethics of the New York Times in using the stories of others without giving credit....

Update: I've added more regarding this at: Sotomayor Offers Lousy Defense To Ethics Charge Over Firm Name

Labels: Attorney Ethics, Judiciary, Marketing, Sotomayor

In the wake of Continental Flight 3407 crashing near Buffalo, I tracked how a number of firms from around the nation using Google ads to hustle clients (see here, here, here, and here). The point was to discuss New York's attorney anti-solicitation rules, and see if they were effective by comparing the local attorney advertising response to two other disasters. The other disasters were the Staten Island Ferry crash in 2003 and the Metrolink train crash in Southern California in 2008.

So now we can add another disaster to the mix: The Washington City Paper reports that:
Lawyers Use Web Site, Google Ads to Find Metro Crash Victims (via Overlawyered). An individual named Jared Reagan started a website (metrotrainaccident.com) and then started hustling lawyers to advertise on it. There is no indication that Reagan is even an attorney.

So what does this mean? For those lawyers that retain Reagan to act as their agent to solicit via web sites, it means that those lawyers have outsourced their ethics to him. Let's be clear about this equation:

outsourcing marketing = outsourcing ethics

Notably, the site itself does not list any New York lawyers, either because he hasn't reached us with his own solicitations for his site yet, or because New York attorneys, under stricter ethics rules than those in other states, have learned to become wary of outsourcing their marketing such people. See: New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.

On a final note, New York's ethics rules are currently being challenged in court. Oral argument was heard before the Second Circuit in January. Judge Sonia Sotomayor was on the panel. A decision is pending.

Labels: Attorney Ethics, Marketing

I was skimming the questionnaire of SCOTUS nominee Sandra Sotomayor to look back at her life in private practice. And I found this starting on page 143 of the Committee Questionnaire:

ii. whether you practiced alone, and if so, the addresses and dates;

Yes, with Sotomayor & Associates, 10 3rd Street, Brooklyn, New York 11231, from 1983 to 1986, but this work was as a consultant to family and friends in their real estate, business, and estate planning decisions. If their circumstances required more substantial legal representation, I referred the
matter to my firm, Pavia & Harcourt, or to others with appropriate expertise.

Now Sotomayor was a prosecutor up until 1984 and started in April of that year with Pavia & Hartcourt, according to the questionnaire. That means she had her private law firm, likely a home office based on her modest description of the practice, that overlapped both her prosecutor's position and her associate's position at Pavia & Hartcourte. So the question here is not whether she had permission to have that private firm, as I suspect she must have, but rather, why she called it "Sotomayor & Associates"?

Did she have any associates when she was advertising herself in that manner? My guess is no, given that this was a side business that she says was devoted to consulting for family and friends. And if she had no associates, then it is a no-no to tell the world that you do. That's misleading.

From the American Bar Association comes this all-inclusive statement that such conduct is prohibited in every state:

Are there any Associates (or "Law Groups") in the House?

There are several state bar opinions that address a lawyer's use of terms in a firm name that carry with them the implication that there is more than one lawyer in the firm. Examples of such terms include "X and associates" or "The X law group". Citations to these opinions, along with digests of them as they appear in the ABA/BNA Lawyers' Manual on Professional Conduct follow.

All State bar opinions are in agreement that a lawyer may not use the term, "and Associates" if there are in fact no associates in the firm. See, South Carolina Opinion 05-19 (2005) (A lawyer seeking to open a governmental affairs and lobbying firm consisting of the lawyer and two nonlawyer employees may not name the firm "John Doe and Associates, P.A." The name violates Rules 7.1 and 7.5(a) because it misleadingly implies that the firm has more than one lawyer.), Ohio Opinion 95-1 (1995) (A lawyer who is in solo practice may not use the phrase "and Associates" in the firm name to indicate that the lawyer shares space with other lawyers, acts as co-counsel with other lawyers, or has non-lawyer employees. A lawyer who is the sole shareholder in a professional corporation may not use the phrase "and Associates" in the firm name when the lawyer in fact has no employees.)

In New York, the conduct would fall under DR 2-102, which bars misleading advertising on a letterhead. [See Comment 2] If in fact Sotomayor had no associates at her firm, it would appear she overstepped the bounds of self-promotion by making her firm seem bigger than it was.

Now I am well aware that there are a whole lot more serious ethical violations that take place. But I do my fair share of writing on the subject of advertising and self-promotion when it comes to practicing lawyers, and it wouldn't be fair to others to give Sotomayor a free pass on the subject.

Previous Sotomayor posts here:

• The SCOTUS Nominee and The Tissue Box Test

• Judge Sotomayor and the First Amendment (And the Pending Case)

• Advice and Consent on SCOTUS Pick - First Time in Decades?

• Sotomayor is Most Like Which Baseball Figure? (Yes! It's a real question!)

Update: I Googled the law firm name with this query: "Sotomayor & Associates" Sonia. I did not find any discussion of Judge Sotomayor's private practice under that firm name.

Update 2:

• This post was cited in a June 20th editorial in the Washington Times
• NYT: "Sotomayor & Associates" Becomes an Issue For Nominee and White House (July 7)
• Welcome New Visitors: (NYT on Sotomayor & Associates, And On Failing to Credit Story Source) (July 7, with links to others that have now referenced this initial posting on the subject)
  
• Sotomayor Offers Lousy Defense To Ethics Charge Over Firm Name (July 7)
  
  

Labels: Attorney Ethics, Judiciary, Sotomayor

Morris Eisen once had a personal injury firm in New York with dozens of lawyers. Many trumpeted his legal smarts. Then he was busted. For rigging cases by fabricating evidence. He was convicted in 1991 of bribery, mail fraud and racketeering and disbarred in 1992, and will forever be a disgrace to the community.

And now it seems, the crook Eisen has been victimized by another crook, Bernard Madoff. Eisen is on the Madoff list with two separate accounts, one on exclusive Fisher Island in Florida and one in Manhattan:

Morris Eisen Fisher Island FL 33109
Morris Eisen & Caryl Ellis New York NY 10022

While he may have been disbarred, he still clearly had substantial assets. (And his cases continue to be argued in one fashion or another.)

A little summary of Eisen's problems from a June 2007 post of mine:

Some of the conduct included shrinking the size of a ruler down on a xerox machine, so a pothole would appear larger when the "ruler" was used, and paying a witness to give testimony about an accident when, in fact, he was in jail at the time and nowhere near the scene.

And when I did my prior summary, I didn't even bother with the sledgehammer that was used to make the accident seem worse.

How much of Eisen's success was based on being a good lawyer and how much based on him being a crook is known by only a few. But one thing is certain, he was an embarrassment to the profession and fed all the worst fears and jokes about lawyers being crooks and ambulance chasers. He tried to claim that the prosecutors picked on him because they were in league with the insurance companies and wanted "to send a chill through the ranks of the lawyers who represent accident victims." I am no less angry today about that crap than when I heard it nearly two decades ago.

For many of us, whose reputations were tarnished merely by being in the same profession as he, no punishment was too great. He served 57 months in prison.

As the old saying goes, what goes around in life comes around. Murray Eisen the hustler has now been hustled by Bernie Madoff. Don't expect me to shed a tear for either of them.

Update: Walter Olson has more on Eisen at Overlawyered, in Live by the swindle...
(hat tip to Louis Schepp for the find)

Labels: Attorney Ethics

The February 12th crash of Continental Flight 3407 and the law firms that appeared to have violated New York and federal ethics rules have previously been chronicled here (see posts below).

But now there seems to be a new entrant: The 50+ lawyer San Francisco based firm of Leiff Cabraser is now running ads via Google that appear under the search "Buffalo Plane Crash." The ad looks like this:

Buffalo NY Plane Crash
Aviation law answers from
leading, national law firm.
www.LieffCabraser.com

A pdf of the search result is here: /BuffaloPlaneCrashSearch3-17.pdf
Clicking the ad this afternoon brings up this page of the Lieff Cabraser site pitching their services:/LeiffCabraserSite.pdf

While New York's 30-day solicitation rule has run its course, the federal 45 day rule has not. As per 49 U.S.C. 1136 (G)(2):

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

I assume that, if push came to shove, the firm would try to claim that running advertisements does not meet the definition of solicitation set forth above.

Previously at my site on the ethics of internet solicitation by attorneys:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (1/5/07)
  

• Who, Exactly, Must Comply With New York's Attorney Advertising Rules? (2/2/07)

• NY Advertising Rules Found Unconstitutional By Federal Judge (7/23/07)

• Attorney Solicitation 2.0 --- Is It Ethical? (12/7/07)

• "Metrolink Train Attoneys" Appear (And What If It Happened in New York?) (9/22/08)

• Hudson River Plane Crash To Test New York's New Attorney Ethics Rules? (1/15/09)

• We Have A Winner! (Lawyer Soliciting Airline Victim Department) (1/16/09)

• New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified (1/22/09)
  

• Buffalo Plane Crash WILL Test New York's New Anti-Solicitation Rules (2/13/09)

• Buffalo Plane Crash Ad Taken Down (2/13/09)

• Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?) (2/16/09)
  

• DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients (2/17/09)

• Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims? (And A Round-Up) (2/23/09)

• Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters) (2/26/09)

Photo credit: Jordan Husney (via Flickr)

Labels: Attorney Ethics, Buffalo Plane Crash

The ads are gone. All of them. In the wake of the crash of Continental 3407 near Buffalo I tracked seven different law firms using Google Adwords to advertise for victims, and every ad has now disappeared. (Search terms used: "Continental 3407" and "Buffalo Plane Crash.")

(Update at 5:18 pm on 2/26, a search for "Continental 3407" once again brings up an ad by the Washington DC firm of Clapp, Desjardins & Ely. I wrote about them last week in DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients.)

So here is a quick and dirty analysis as to whether or not attorney anti-solicitation rules were the reason, based on three recent disasters.

First: On October 15, 2003 the Staten Island Ferry crashed killing 11 people and injuring 71. In the following days the Staten Island Advance was flooded with lawyer ads. This was the impetus for New York's 30-day anti-solicitation rule, which went into effect at the beginning of 2007. (I tried to get back issues to actually count the ads, but they were not available.)

Second: On September 28, 2008, a Metrolink train crashed in Chatsworth, CA, near Los Angeles, that killed 25 and injured over 100 more. Kevin O'Keefe counted at least 25 sponsored ads by attorneys when he ran a Google search for "Los Angeles Train Accident Attorney." California does not have an attorney anti-solicitation rule.

Third: The crash near Buffalo had only seven ads, and most (as detailed in the links below) were from out of state.

While this isn't the most scientific of experiments, the sharp contrast leaves little doubt that ethics rules are effective in putting a sharp brake on attorney solicitation (or at least this public type of solicitation). Bearing in mind that there are about a million lawyers in the nation and about 75,000 in New York, the restraint shown has been extraordinary. Only a very few people attempted it, and they quickly withdrew.

Whether the rules survive First Amendment challenge due to the difficulty defining solicitation given the myriad ways it can be done under cover of writing about an incident on a website or blog, as I've previously discussed, is another story.

These rules exist in eight states (as of July, 2007) plus a federal rule specific to aviation disasters. The only judge to review the rules so far, Judge Frederick Scullin, Jr. sitting in the Northern District of New York in Alexander v. Cahill, wrote in a footnote about the reason for the rules:

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

That decision has been appealed and was recently argued in the Second Circuit.

Prior posts on this subject:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (1/5/07)
  

• Who, Exactly, Must Comply With New York's Attorney Advertising Rules? (2/2/07)

• NY Advertising Rules Found Unconstitutional By Federal Judge (7/23/07)

• Attorney Solicitation 2.0 --- Is It Ethical? (12/7/07)

• "Metrolink Train Attoneys" Appear (And What If It Happened in New York?) (9/22/08)

• Hudson River Plane Crash To Test New York's New Attorney Ethics Rules? (1/15/09)

• We Have A Winner! (Lawyer Soliciting Airline Victim Department) (1/16/09)

• New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified (1/22/09)
  

• Buffalo Plane Crash WILL Test New York's New Anti-Solicitation Rules (2/13/09)

• Buffalo Plane Crash Ad Taken Down (2/13/09)

• Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?) (2/16/09)
  

• DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients (2/17/09)

• Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims? (And A Round-Up) (2/23/09)
  

Photo credit: Jordan Husney (via Flickr)

Labels: Attorney Ethics, Buffalo Plane Crash

I was all set this morning to write that the lawyers I found last week running Google ads regarding the crash of Continental Flight 3407 near Buffalo had all been pulled down. There were seven law firms involved: Three from Chicago, two from Philadelphia, and one each from Houston and New York. I had done a Google search while on vacation in Florida on Saturday and, when I found none, asked Scott Greenfield to run one in New York in case there was some regional difference in the Google algorithms. He also found all the ads gone.

But as I sat down to type this morning I did one last search and, lo and behold, a search of "Flight 3407" finds that the Ribbeck Law Firm of Chicago has an ad again, and they seem to determined to make themselves a test case of New York's 30-day anti-solicitation rule. This is the firm that built a site specifically for this crash, www.Continental3407.us.

It's worth noting that the web site has now been modified. This come-on previously appeared on the site after expressions of sympathy:

Please feel free to contact us at 1 312 xxx-xxxx or 1 312 xxx-xxxx should you
have any questions. You can also send an e-mail to Monica Kelly(aviation
law) at monicakelly@ribbecklaw.com.
Operator Colgan Air, as
Continental Connection

The modified site no longer screams at people to call them, but expresses condolences and tells people how to contact them in more subtle ways. You can see the old version here and the new version here: /RibbeckFirm34072%3A27@6-32.pdf

Thus, in modifying the site, the firm apparently seems to believe that they stepped over the ethics line with a flagrant solicitation, in violation of New York's 30 day anti-solicitation rule and the 45-day federal anti-solicitation rule (depending on the fed definition).

But the firm may also likewise believe that running a Google ad designed to appear for a "Flight 3407" search inquiry with the overt part of the solicitation now removed, will somehow save them from the ethics rules.

The un-tested ethics rules would seem to say otherwise. Ribbeck seems to fail on all four prongs of New York's definition of solicitation. Note in particular the very troublesome section "b." It is troublesome due to the difficulty sometimes in defining "the primary purpose" of a communication. According to Ethical Consideration (EC) 2-18 of New York's Code of Professional Responsibility:

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)

Since Ribbeck had flat-out asked people to call when they set this web site up, though, they will be hard pressed to claim that solicitation of victim's families was not the primary purpose.

Other posts I've made on this subject, dating back to the start of this blog and continuing through with the splash landing in the Hudson of Continental Flight 1549 until the present:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (1/5/07)
  

• Who, Exactly, Must Comply With New York's Attorney Advertising Rules? (2/2/07)

• NY Advertising Rules Found Unconstitutional By Federal Judge (7/23/07)

• Attorney Solicitation 2.0 --- Is It Ethical? (12/7/07)

• "Metrolink Train Attoneys" Appear (And What If It Happened in New York?) (9/22/08)

• Hudson River Plane Crash To Test New York's New Attorney Ethics Rules? (1/15/09)

• We Have A Winner! (Lawyer Soliciting Airline Victim Department) (1/16/09)

• New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified (1/22/09)
  

• Buffalo Plane Crash WILL Test New York's New Anti-Solicitation Rules (2/13/09)

• Buffalo Plane Crash Ad Taken Down (2/13/09)

• Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?) (2/16/09)
  

• DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients (2/17/09)

Labels: Attorney Ethics, Buffalo Plane Crash

Query: How hungry does a law firm have to be to run the risk that their client acquisition tactics will put them in ethical hot water?

Shortly after the crash of Continental Flight 3407 near Buffalo, I wrote that the crash would test New York's new 30-day anti-solicitation ethics rules. I did a few searches to establish a baseline and chronicled the development of the marketing. The marketing takes several different forms, as I noted after the US Airways splash landing, and includes how attorney ethics can be laundered. I also wrote that some of techniques might afoul of the First Amendment and needed to be modified. The Second Circuit currently has one case on the subject.

And so yesterday I ran a new post on those firms that have started marketing, one with a brand new website and others with Google ads directing people to the firm's existing site (Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?)). Three firms from Chicago and one from Houston were found to be apparently soliciting in this fashion, as well as one from New York.

Today comes another (hat tip to Patrick from Popehat). If you Google "Flight 3407" you get this ad in the sidebar:

CDE - Aviation Lawyers
Experienced aviation accident and
transportation injury lawyers
cdelaw.net

So once again we see a firm, this time Clapp, Desjardins & Ely of Washington D.C., apparently using keywords to trigger the ad placement while avoiding a direct reference to the flight in the ad. But the page it brings you to is unambiguous, with this invitation on the home page:

Click for information on the Crash of Continental Express flight 3407.

After clicking the ad, I headed to the new page where, after expressing their sympathies, the lawyers write (/ClappWebSite2%3A17@12-23pm.pdf):

We are willing to meet with any family affected by this tragedy. Should you wish to set up a meeting, either in person or via a conference call to discuss your legal needs concerning the Continental Express Flight 3407 crash, please call Mike Ely or Doug Desjardins at 202-xxx-xxxx.

In the old days, solicitation took place with direct contact by mail or in person. Then New York altered its ethics rules to include cyber-solicitation, and that also applies to solicitation from from out-of-state law firms. You can read about it at this prior post.

There is also, as I noted yesterday (as had a couple of commenters) a federal prohibition against solicitation.

So it appears that the firms jumping into the advertising game are willing to take the risk of action against their licenses in exchange for acquiring new cases.

I have no doubt that if New York or the feds open ethics investigations, there will be these defenses:

First: Somehow claim that the ad wasn't a solicitation to victims's families; and

Second: Even if it is, it is protected by the First Amendment; and

Third: That they weren't responsible for the ad placement, but that a marketer did it without their knowledge. Turning a blind eye to what is being done in the name of the law firm will no doubt occur.

But as I noted yesterday, when ethics is tied to marketing, and you outsource your marketing, then you have also outsourced your ethics.
---------------------------------------------------
Updated: The Philadelphia firm of Messa & Associates has jumped into the cyber-solicitation chase. See the first comment.

Labels: Attorney Ethics, Buffalo Plane Crash