Category Archives: Attorney Ethics

 

June 4th, 2009

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with "& Associates" Name?

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:

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:

Links to this post:

busting judge sotomayor
judge sotomayor has the enviable advantage of being the nominee of a democratic president, and an overwhelmingly democrat congress. as such, her success has been a foregone conclusion. but simply arguendo, let me outline reasons why …

posted by PoliticalChic @ July 16, 2009 10:49 AM

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance …

posted by Walter Olson @ July 13, 2009 3:40 AM

the lessons of sotomayor and associates
fittingly, it was a solo – eric turkewitz – who broke the story of supreme court nominee, sonya_sotomayor’s foray into solo practice under the firm name, sotomayor and associates -impermissible name under new york ethics rules given …

posted by [email protected] (Carolyn Elefant) @ July 13, 2009 12:59 AM

why eric turkewitz still matters
with regard to the issue of giving credit for discovering the “sotomeyor & associates” issue, eric turkewitz comments: something might be in the public domain, but it if is buried in a box of other documents, someone still has to go …

posted by Mark Draughn @ July 09, 2009 11:48 AM

on the ethics of sourcing for bloggers and journalists
radley balko used to piss me off. back in my early days in the blogosphere, i sent him a few links to stories i thought might interest him. he then mentioned those stories in his agitator blog, but didn’t credit me for sending him the …

posted by Mark Draughn @ July 08, 2009 11:24 AM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself. …

posted by Walter Olson @ July 08, 2009 7:20 AM

sotomayor & associates
[guest post by drj]. the new york times addresses sonia sotomayor’s legal practice in the 1980’s: “in her questionnaire, judge sotomayor says she was the “owner” of sotomayor & associates, which she described as a consulting business …

posted by DRJ @ July 08, 2009 12:08 AM

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

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

blawg review #215
it’s 2:30 am on the morning of world oceans day, as i sit here drowning in a sea of submissions for blawg review #215. buoy, i’m in trouble, with a sinking feeling about all i have yet to do. but before i sail into the heart of this …
posted by [email protected] (Carolyn Elefant) @ June 08, 2009 3:25 AM

 

March 23rd, 2009

Morris Eisen, Disgraced NY Personal Injury Attorney, Is Also A Madoff Victim (Irony)

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.

Photo: Associated Press

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

Links to this post:

blawg review #205
orrery closeup by binks. welcome to blawg review #205, the music of the spheres edition. the english composer gustav holst (1874-1934) was hugely prolific, but he is unquestionably best known for his orchestral suite, the planets. …

posted by George Wallace @ March 30, 2009 3:01 AM

live by the swindle…
call it karma? among bernard madoff’s victims, eric turkewitz has discovered*, is none other than the infamous morris eisen, who made a ton of money in personal injury practice by faking evidence for his cases (highlights: taking a …

posted by Walter Olson @ March 25, 2009 3:05 PM

Non-Sequiturs: 03.24.09
* The AIG bonus tax is also sexist. And, of course, communist. And most likely racist, homophobic, ageist, it certainly doesn’t do enough to fight AIDS or cure cancer, and is solely responsible for the death of every puppy in North …
posted by @ March 24, 2009 6:27 PM

 

March 17th, 2009

SF Firm Now Cyber-Chasing In Buffalo Plane Crash

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:

Photo credit: Jordan Husney (via Flickr)

Links to this post:

march 25 roundup
driver on narcotic painkillers crashes car, lawyer says pharmacists liable [las vegas review-journal]; who’s that cyber-chasing the buffalo continental air crash? could it be noted san francisco-based plaintiff’s firm lieff cabraser? …
posted by Walter Olson @ March 25, 2009 7:20 AM

 

February 26th, 2009

Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters) – Updated

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:

Photo credit: Jordan Husney (via Flickr)

Links to this post:

march 5 roundup
uninjured patients of california, unite to demand the money you have coming to you! [russell jackson via pol]; lawyer’s nastygram to blogger patterico: how dare you talk to my witnesses as part of your research on my case? …
posted by Walter Olson @ March 05, 2009 9:35 AM

 

February 23rd, 2009

Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims? (And A Round-Up)


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 [email protected].
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: RibbeckFirm-modified site.

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:

Links to this post:

march 5 roundup
uninjured patients of california, unite to demand the money you have coming to you! [russell jackson via pol]; lawyer’s nastygram to blogger patterico: how dare you talk to my witnesses as part of your research on my case? …
posted by Walter Olson @ March 05, 2009 9:35 AM