Well, that didn’t take long. As I sit here pecking away at the keyboard, firefighters and search teams are swamping the site of a huge gas explosion in Harlem that took down two buildings, killed at least two, and injured many others.

The explosion took place at 9:30. The first attorney ad went up on Twitter within hours. The winner in the race to the bottom? [Updated, name deleted.)  You can see a screen shot of his Twitter feed here to the right [deleted].

And if you can’t read the graphic, here it is in all it’s ugly glory, via his Twitter feed,  @NY_InjuryLawyer:

Were you or someone that you know injured in the #eastharlem explosion? Contact [deleted] at 1-800-[deleted]. #harlem #explosion #nyc

(Update, 3/13/14: The firm has now deleted it from Twitter…see below for explanation.)

As regular readers all know, New York has a 30-day anti-solicitation rule in our Rules of Professional Conduct. It goes like this:

Rule 4.5(a) In the event of a specific incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm representing actual or potential defendants or entities that may defend and/or indemnify said defendants, before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

The last time I wrote about this was December 2, 2013, when Proner and Proner were running ads after a train derailment in the Bronx.

And at the risk of repeating myself, yes, this is a solicitation within the meaning of the Code because it is targeted to a specific group of people:

Rule 7.3(b)  For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

What I found interesting was that, in the weeks after that accident, I spoke at a seminar on the subject of attorney ethics and solicitation. Incredibly, there was someone there trying to defend the practice of violating an explicit rule on solicitation. His rationale? That there existed some type of generalized duty of lawyers to inform the public of their legal rights.

Let’s be clear on this. Soliciting within 30 days seems to be a pretty clear violation. I can’t foresee anyone being able to lawyer their way around it if called on the carpet by the disciplinary committee.

The only real question is whether the disciplinary committees will turn a blind eye to what is going on.

Update, 3/13/14: I received a call from a very distressed support person for the lawyer — she is in charge of the social media for the firm and is the one that did the tweet. She told me that she posted the tweet without having it reviewed  by her boss, which was her mistake.

I told her that the mistake was not hers, but the lawyer’s, for outsourcing his marketing to a non-lawyer who didn’t know the Code of Professional Conduct, and noted the formula: outsource your marketing = outsource your ethics.

She corrected me, and noted that she was supposed to get approval. Thus, the fault lies with her.

A couple of things worth mentioning. First, I always give brownie points for people that ‘fess up when they’ve made an error. I wish our politicians would do the same.

Second, there were no threats of any kind. It was, in all respects, a very polite request made by phone. She had the voice (and integrity) of the type of person a lawyer would want as a support person.

Finally, I’ve elected to delete the lawyer’s name from the text, and pulled it off the category heading. It is still on the graphic [edit: changed my mind, now that is gone also], but graphics aren’t searchable by Google.

So it now stands as another example of the risks of social media, as well as an excellent example of how to cure a foul up. This morning the firm had lemons. Now it has lemonade.

hat tip: Andy Barovick

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The case should be very interesting to watch.