November 17th, 2011

Lawyer Solicitation: Penn State Sex Abuse Edition

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

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

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

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

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

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

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

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

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

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

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

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

Rule 7.3 Direct Contact with Prospective Clients

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

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

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

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

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

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

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

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

January 4th, 2011

NY Lawyer Solicits Snowbound Subway Victims (Does He Violate Ethics Rules?) – Updated

During the December 26-27 blizzard hundreds of passengers were stranded for up to eight hours on an elevated section of subway near Kennedy Airport. And now a lawyer is out there soliciting victims for a suit against the local transit authority that runs the subways.

According to this Daily News article, lawyer Aymen Aboushi is about to sign up seven clients from the stranded A train and hopes to sign up hundreds more. He even created a website just for this purpose, stuckonthesubway.com.

According to the pitch on the website:

This web site has been set up to help people who were stuck on the A train during the December 2010 blizzard hold the [Metropolitan Transit Authority] accountable for leaving them stranded. The train was disabled and passengers were not allowed to get off the train. Passengers were left without heat, water, or food for over 8 hours, in 15 degree weather, even though the train was above ground and the MTA had access to it. Many people who were trapped on the subway have contacted us. Please contact us to see if you can join the legal action we will pursue against the MTA.

There seems to be, according to my eye, just one little problem with this pitch. It looks like it violates New York’s 30-day anti-solicitation rule. That would make it an ethical violation if I am right.

This is the 30-day rule, from the Rules of Professional Conduct (Rule 4.5)

No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated 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 does a website pitch count as solicitation? Well, it sure seems to be “targeted” and “directed” to a specific group. According to 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.

Do all websites have this problem? Apparently not. But those that were created for just this purpose? The rule-makers were thinking ahead here in Rule 7.3(c)(5). I’ve added the italics:

The provisions of this paragraph shall not apply to:

(i) a solicitation directed or disseminated to a close friend, relative, or former or exist- ing client;

(ii) a website maintained by the lawyer or law firm, unless the web site is designed for and directed to or targeted at a prospective client affected by an identifiable actual event or occurrence or by an identifiable prospective defendant;

So let me sum this up in legalese; The solicitation looks like a big, fat, no-no. (I’ve written about this before with other incidents, including a Staten Island Ferry crash, the Hudson River splash landing, and a Buffalo plane crash.)

A closing note. If you read the comments at the Daily News article, you will see near universal condemnation of Aboushi. But all lawyers, and their clients, will suffer when we walk into the courthouse to pick a jury. It only takes a few bad apples to tarnish a profession. Aboushi seems to be doing his best to be one of them.

——

Updated 1/5/10: The website stuckonthesubway.com is now down, with a redirect to the Yahoo home page. My guess is that the lawyer realized he stepped over an ethical boundary and yanked the site.

May 11th, 2010

Will Staten Island Ferry Crash Test NY Anti-Solicitation Rules?

A year ago I watched, and blogged, as law firms used the web to solicit victims of the crash of Continental Flight 347 in Buffalo, in apparent disregard of New York’s 30-day anti-solicitation rules. With the crash of the Staten Island Ferry this weekend, it appears to be happening again, with lawyer ads popping up on Google when “Staten Island Ferry Crash” is plugged into the search engine.

First, the definition of solicitation, from Rule 7.3 of the New York Rules of Professional Conduct:

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

And what is the time frame for the anti-solicitation rule?

No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So let’s see what do you get when you Google “Staten Island Ferry Crash”: The first name you get in the Google ads is Kreindler & Kreindler, a pretty big firm in this town. This is the pdf of the search terms:Staten Island Ferry Crash. The keywords that they gave to Google for that to come up, of course, are known only the firm and Google. The magic words concerning the accident don’t appear in the ad. But when you add “lawyer” to the end of that search phrase, you see that Kreindler now has “Boat Crash Law Firm” in its ad heading, indicating that the ad was likely created directly for this (though, perhaps, they could have predicted the crash before it happened and had that as a long-standing ad).

You can contrast the Kreinder ad with this: If you add the word attorney to the search box, you find the Siskind Law Firm with this blatant Google ad (pdf:StatenIslandFerryCrashAttorney):

Staten Island Ferry Accident Lawyer
Injured on the Ferry? Call Us Today

Thus, with these two examples, you can see how electronic solicitation has a number of shades of gray. Some stuff may be hidden, and other stuff not. This is not meant as an exhaustive review of all the firms that may be soliciting, but of two contrasting examples of how firms may walk up to the line, go over the line, or leave it unclear as to whether they did or didn’t.

Ironically, it was the Staten Island Ferry crash of 2003 that killed 11 people, with the same boat, that was the impetus for the 30-day anti-solicitation new rule. Even before the carnage had cleared the site on the day of the accident, lawyers had rushed to the Staten Island Advance to place ads in the paper for the next day. It was, to say the least, unseemly.

Now there is one glaring problem with me writing about this subject: How do I write about it without others accusing me of using my blog to do what the others are doing with Google ads?

And yet, this stuff is right in my wheelhouse. The rules were directed toward my part of the bar. If I don’t write about it, when I have a blog of my kind, then who will? The answer, likely, is that no one will, and to me that is unacceptable.

The first time I did an analysis of the rule in the face of an actual accident, as opposed to writing about it in theory, was after the Hudson River splash landing in which physical injuries were few.

My objective here is to pull the curtain back on what conduct that continues despite the rule (though I suspect to a much less degree). Of course, this is only what I see in public, and doesn’t address the fact that some may get letters from lawyers, as had happened after the plane crash.

I’ve been tackling these rules since the time that they were created, so if you want to see my prior thoughts on it, even before last year’s plane crash in Buffalo, you can read many of the links I have at the end of this post: Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters). The “Attorney Ethics” tab will take you to many of those, and many more.

And in the ever-shifting world of gray when it comes to marketing and solicitation, what would happen to the “blog” that reports the accident and gives no commentary or analysis? And has “call me” call to action at the bottom? Or just a smidgen of commentary or analysis with the call to action at the bottom? The answer, of course, is that nobody knows since we are on ground that has never been plowed before.

August 3rd, 2009

Ambulance Chasers, Runners and Other Creeps

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.

Links to this post:

september 15 roundup
it’s almost as if arizona wants to encourage broken-windshield fraud [coyote]; “they are so greedy that — how awful! — they are selling food cheap.” [ann althouse takes out after michael pollan]; tom freeland examines “clarksdale sugar …

posted by Walter Olson @ September 15, 2009 7:47 AM

personal injury roundup of links
wisconsin supreme court begins to lean to the right, notwithstanding last week’s informed consent holding. <1 million malpractice settlement in chicago (dallas fort worth injury lawyer) . advice on coordinating pip and workers’ …

posted by @ August 03, 2009 3:21 PM

January 16th, 2009

We Have A Winner! (Lawyer Soliciting Airline Victim Department)

Last night I wondered who would be the first to violate New York’s 30-day ban on attorneys soliciting after a mass disaster (Hudson River Plane Crash To Test New York’s New Attorney Ethics Rules?)

Now we seem to have a clear winner. After Googling “Flight 1549” we get this ad in the right side-bar of Google (Flight1549LawyerSearch.pdf)

USAirways Crash Victim?
Helping Victims of Flight 1549
Contact Our Aviation Attorneys
www.jcReiterLaw.com
New York, NY

Clicking on the link brings this predictable text:

Were you a loved one aboard US Airways Flight 1549? Are you concerned about your legal rights? Contact our firm to understand how to protect yourself and to seek damages for injuries or trauma sustained during the crash.

OK, those are the facts, now let’s follow the ethics rules…

The anti-solicitation rule is as follows, from New York’s Code of Professional Responsibility (with my italics as emphasis):

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.

So is a Google ad a solicitation? First, here is the definition of solicitation, paying particular attention to section (d):

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.

Any advertisement that meets all four of these criteria is a solicitation, and is governed not only by the rules that govern all advertisements but also by special rules governing solicitation.

So what does it mean to be “directed to or targeted at a specific recipient or group of recipients…?” Glad you asked. So here it is, under Ethical consideration (EC) 2-19:

“…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.”

So what does the Law Firm of Jonathon C. Reiter win? Either clients or a bench slap. We’ll see which one it is.
———————————————

Note: The law firm link I provided is via TinyUrl redirect so that the firm does not benefit from any Google juice from this posting.

Links to this post:

mortimer, morden, and miracles
a few “quickies” that took too long to write this saturday morning afternoon: thank you, john mortimer, for creating rumpole: as today’s new york times reports, “john mortimer, barrister and writer who created rumpole, dies at 85” (jan. …

posted by David Giacalone @ January 17, 2009 1:25 PM