Well, there they go again. It was just this past May that I took the New York law firm of Proner & Proner to task for stepping all over New York’s attorney ethics code with regard to a local train accident, and they seem to be back at it again. Yesterday’s deadly train derailment in the Bronx occurred about 7:20 am. The Proner law firm ran their first ad on YouTube within hours.
Let’s review, shall we?
In the wake of the 2003 Staten Island Ferry crash that killed 11 — and the race by some law firms to run ads in the Staten Island Advance before all the bodies had even been pulled from the wreckage — New York updated the Rules of Professional Conduct to stop the unseemly chasing of cases soon after a tragic event. This is our 30-day anti-solicitation rule:
Rule 4.5(a) In the event of a specific incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm representing actual or potential defendants or entities that may defend and/or indemnify said defendants, before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.
And just to be clear about what solicitation means, yes, it seems to mean doing something exactly like this — targeting a specific group. Read for yourself:
Rule 7.3(b) For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.
I’ve written about this 30-day rule often, first after Captain Chesley Sullenberger splash landed a plane in the Hudson, then after a plane crash in Buffalo.
And most recently, I brought it up with this same firm, Proner & Proner, after another Metro-North derailment in Stamford Connecticut, when they apparently did the same thing they do today — use YouTube to solicit cases, despite our anti-solicitation rule. I counted stock videos uploaded in the hours after the accident, all of which have keyword loaded text to accompany it. See the screen grab above.
This makes Proner & Proner the second firm to get dishonorable mention twice on this blog for the same infraction. (The first went to Ribbeck Law after plane crashes.) I’m willing to bet, given that Proner has over 1,000 YouTube videos, that this type of conduct is probably standard procedure for them.
Why write about it again? Apparently, because those in charge of doing the disciplining either:
1. Don’t read this blog / didn’t notice; or
2. They did notice but don’t actually care enough to do anything about it.
I sure hope it is the former and not the latter, because the idea that the courts would institute ethics rules but not follow them isn’t a thought I like to contemplate. Since I happen to think that the 30-day rule works, I likewise think it’s important to enforce it.
It’s also important to note, as I always do when taking a firm to task when my eyes see as ethical issues, that there are very few firms that do this. But those that do serve to influence how the public feels about lawyers. And when I go pick a jury on behalf of my own clients, my clients are the ones that suffer from the deep cynicism that such conduct creates. This is not just my opinion.
Judge Frederick Scullin, Jr. sitting in the Northern District of New York in Alexander v. Cahill, wrote in a footnote about the reason for the rules:
Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished.
It should be the obligation of attorneys to improve upon the system of justice, not bring it down.
It’s like your mother told you: it just takes one bad apple to ruin it for the rest of us.
Did you see this? http://nypost.com/2013/12/02/bar-warns-lawyers-on-possible-metro-north-lawsuits/
Yeah. The NY Post will never miss an opportunity to gratuitously bash lawyers. It’s part of their DNA.
Perecman just ran a TV commercial on Fox News (Cablevision) that mentioned the Metro-North accident explictly. So this isn’t confined to youtube. The add specifically advises “if you or a family member was injured [in the accident]…contact…”
Ambulance chasing in all its permutations is a widespread problem across the country. In Georgia, Rule of Professional Conduct 7.3 provides in part as follows:
A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if:
it has been made known to the lawyer that a person does not desire to receive communications from the lawyer;
the communication involves coercion, duress, fraud, overreaching, harassment, intimidation or undue influence;
the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or
the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.
Written communications to a prospective client, other than a close friend, relative, former client or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment shall be plainly marked “Advertisement” on the face of the envelope and on the top of each page of the written communication in type size no smaller than the largest type size used in the body of the letter.
A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer’s employment by a client, or as a reward for having made a recommendation resulting in the lawyer’s employment by a client; except that the lawyer may pay for public communications permitted by Rule 7.1 and except as follows:
A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.
However, enforcement of the anti-solicitation rule has proven extremely difficult, especially in light of the reluctance of bar counsel to undertake sting investigations.
When I was president of the State Bar of Georgia (2011-12), I appointed a committee that drafted tweaks of lawyer advertising rules (passed by the Board of Governors but still pending in our Supreme Court) and worked on getting into law enforcement, State Court solicitors and hospital attorney training programs units on how to develop sting investigations of “runner” solicitations. That remains a work in progress.
Texas recently passed a tough barratry statute that may prove effective in dealing with runners and other improper solicitations.
When there was a sugar plant explosion in Savannah a few years ago and out of state firms immediately began running ads directed at that specific incident, the general counsel of the Georgia Bar flew to Savannah and appeared on local TV news regarding the ethical concerns. So far as I know the firm running those ads did not get any case. Most of the families got legitimate, solid referrals to respected local lawyers.
Kenneth L. Shigley
Past President, State Bar of Georgia (2011-12)
Board Certified, National Board of Trial Advocacy
Shigley Law, LLC
950 East Paces Ferry Rd., NE
Atlanta, GA 30326
(Adjacent to north end of Lenox MARTA station)