February 17th, 2009

DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients (Updated)

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%[email protected]):

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.
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Updated: The Philadelphia firm of Messa & Associates has jumped into the cyber-solicitation chase. See the first comment.

February 16th, 2009

Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?) Updated

A new website has been established by a Chicago law firm to solicit the family members of the crash near Buffalo New York last week. It is the Ribbeck Law Firm, founded by Manuel von Ribbeck. This is the web site’s home page (www.continental3407.us/index.htm) with a snapshot of the page at about 1:50 pm today: /Flight3407WebSite.pdf Other lawyers have been found to be using Google Adwords to solicit readers to their websites with the search term “Flight 3407,” while keeping that search term out of the ad itself.

(I had previously discussed how this air disaster would test New York’s new 30-day anti-solicitation rules.)

The lawyers at Ribbeck express sympathy for the victims at their new site, and then invite relatives to contact them with this come-on from partner Monica Kelly:

Please feel free to contact us at 1 312 822 9999 or 1 312 608 6776 should you have any questions. You can also send an e-mail to Monica Kelly (aviation law) at [email protected].

You can find the ad when you Google Flight 3407 (/Flight3407GoogleSearch.pdf), and you will also find another Chicago firm popping up, The Nolan Law Group. The Google ad link for Nolan brings up this following image as of 1:56 p.m. today under a banner that states, in part, “Free Case Evaluation” (though the banner doesn’t turn up in the pdf: NolanLawGroup2%[email protected] The juxtaposition of an “article” on the crash with “Free Case Evaluation” speaks volumes, to me, of the intent of the web site. (h/t Jennifer Liddy in the comments of prior post.)

A third out-of-state firm, The Gibson Law Firm of Houston, has also started running Google ads that respond to the Flight 3407 search inquiry:/Flight3407Search2%[email protected] Hitting the ad brings us to this page /GibsonLawFirm2%[email protected] with stuff written about the crash next to a sidebar that offers “Have your case reviewed today.” Gibson even goes so far as to claim that the Continental crash is one of their “practice areas.” /GibsonPracticeAreas.pdf

All of this is the type of stuff that New York’s new ethics rule was designed, I think, to combat. The ethics rules also clearly apply to out-of-state attorneys:

Extra-Territorial Application of Solicitation Rules

EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.

By soliciting for a New York accident it would seem to make any potential defense that New York has no jurisdiction over them particularly difficult.

Also on the list Google search list is the office of Jonathan Reiter, who had previously had an ad up with a specific reference to the flight, and then had it pulled down when he was alerted to my blog posting. The ad still pops up, though, with a search of “Flight 3407,” which seems to indicate an attempt to coax victim’s families to the site without explicitly stating the name of the flight in the ad.

As I noted in that prior post, when marketing and ethics are entwined, then outsourcing the marketing results in an outsourcing of ethics. Any firm that doesn’t have an admitted lawyer directly overseeing every marketing decision runs the risk of a mistake that can ruin a career.

It’s also worth noting that there are federal penalties for soliciting after air disasters (though I have confined all prior discussion to New York’s ethics rules and how they come into play regardless of the type of disaster). Federal law prohibits solicitations within 45 days. 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.

This law was passed in the wake of TWA Flight 800 crashing off the coast of Long Island. You can read background on the history of the law here. The issue here will be whether running ads on Google constitutes a “solicitation.”

What state and federal authorities intend to do with these people remains to be seen. Clearly, it seems, as lawyers try to fuzz the line of solicitation, then First Amendment battles will come to the forefront. There is one currently pending before the Second Circuit, which I previously discussed regarding some of the ways that marketers might try to beat the rules and the First Amendment issues that they create: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.

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Updated 2/16/09 8:52 p.m. — A third Chicago law firm is now directly soliciting clients via Google Adwords and their website, the Clifford Law Firm. A search of “Buffalo Plane Crash” (h/t Dano in the comments) returns this ad (/BuffaloPlaneCrashSearch2%[email protected]):

Buffalo Plane Crash
aviation.cliffordlaw.com
Experienced Airline Disaster And Wrongful Death Lawyers.

The caption of the webpage is this: Buffalo NY Plane Crash Involved Turboprop Plane: We have aviation attorneys with experience in plane crash claims involving turboprop aircraft.
The page is here: /BuffaloPlaneCrash–CliffordLaw.pdf

I’ll say this about Chicago personal injury bar: Right now they’re making the rest of us look good.

And as a refresher, this is the definition of solicitation in New York according to Ethical Consideration (EC) 2-18 of the 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.

It is clearly my opinion that, in using “Buffalo” and “Flight 3407” in Google Ads, as it appears is happening, that the “primary purpose” of the ads is to persuade the targets to retain the firm.
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2/17/09 Update: DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients

Links to this post:

blawg review #200
could this be the end of the line? when we started blawg review with the question, “do you blawg?” in 2005, who would have thought this traveling carnival of law blogs would still be alive 200 weeks later? …

posted by Editor @ February 23, 2009 12:00 AM

february 19 roundup
surprising origins of federal corruption probe that tripped up luzerne county, pa. judges who were getting kickbacks on juvenile detention referrals: insurers had noted local pattern of high car-crash arbitration sums and sniffed …

posted by Walter Olson @ February 19, 2009 1:04 AM

Unethical Ambulance Chasing?
In the past I talked about Wisconsin personal injury attorneys sending letters to recent car accident victims, similar Wisconsin law firm’s letters, and accident lawyers who post about recent accidents. In the newest twist, …

posted by Frank Pasternak @ February 19, 2009 12:05 AM

ny attorney ethics…
blogger eric turkewitz of the the new york personal injury law blog had an interesting post about attorney ethics and ads on the internet. this post specifically dealt with attorney ads after the buffalo plane crash. …

posted by Colleen Ostiguy @ February 17, 2009 10:33 AM

February 13th, 2009

Buffalo Plane Crash Ad Taken Down

I received a phone call moments ago from a very upset Jonathan Reiter, a local attorney whose office ran this ad this morning regarding the crash of Colgan Air / Continental Flight 3407:

Continental Crash Victim?
Helping Victims of Flight 3407
Contact Our Aviation Attorneys
www.jcReiterLaw.com
New York

Reiter told me that, when he heard of the ad, he ordered it taken down immediately and “has basically taken the head off the guy that did this.” That ad is now gone.

But here is the crux of the problem: Attorney advertising and ethics are deeply entwined. And so, when the advertising is outsourced, then the ethics get outsourced with it.

See also, from November 2007: The Ethics of Attorney Search Services.

February 13th, 2009

Buffalo Plane Crash WILL Test New York’s New Anti-Solicitation Rules (Updated x3)

When I wrote three weeks ago about the possibility of the Hudson River splash landing testing New York’s 30-day anti-solicitation rules for attorneys, I did it with a question mark and with one eye firmly on the fact that it ended very well for the people on board the plane. It even ended well for the bar, as I found only one firm that appeared to violate the ethics rule. It also led me to explore, while the Second Circuit considered the issues of New York’s new rules, the myriad ways that ethics laundering can take place with lawyers hiring attorney search services to solicit, or running “articles” on their web sites about the crash.

I didn’t expect to write again so soon on the subject, but today’s horror in Buffalo with Colgan Air / Continental Flight 3407 crashing and killing 50 people will bring the subject of attorney ethics and the 30-day anti-solicitation rule right back to the forefront. You can read much more about the rules at the prior links, but this is the starting point from New York’s Code of Professional Responsibility:

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.

My analysis below — which will be updated in the future to provide for reactions from the bar to the crash — is limited to use of Google searches. First we’ll look at sponsored ads, and then natural search results.

Sponsored ads:

At 6:51 this morning I Googled “Buffalo Plane Crash” and came up with zero sponsored ads:/BuffaloPlaneCrash-2%[email protected]
At 6:55 I added “attorney” to the search phrase and came up with a few aviation firms that seem to have stock ads, but nothing obviously geared toward Buffalo:/BuffaloPlaneCrashAttorney-2%[email protected]
At 10:42, you now see some sponsored results for “Buffalo Plane Crash.” These don’t reference Buffalo in the ad, but that doesn’t mean it wasn’t a keyword that a marketer added to the search Google Adwords terms that would return this response. To me, a very subtle, but significant means of breaching the rules if that is how it was done. /BuffaloPlaneCrash-2%[email protected]

The chance of this changing as attorneys try to solicit via the web is high, but at least the starting point has been frozen in time.

Update #1 (2/13 @ 12:32) – The first ad directly soliciting victims has now appeared. It is by the same attorney that ran an ad after the Hudson River crash. Here is the pdf:/BuffaloPlaneCrash-11%3A13-12-32pm.pdf And here is the ad:

Continental Crash Victim?
Helping Victims of Flight 3407
Contact Our Aviation Attorneys
www.jcReiterLaw.com
New York

Update #2 (4:44): I received a call from Reiter, and the ad was taken down.

Update #3 (10:07 pm): Buffalo law blogger Roy Mura (Coverage Counsel) found another ad that directly solicits for this accident, from Philadelphia attorney Joseph Messa. (Welcome to New York, Joe. Now please leave.) You can find the link in the comments to this post.

At the same comment by Mura we learn that the Buffalo firm of O’Brien Boyd now surfaces with the search term “Buffalo plane crash.” At their web site, the text now reads:

We have already received several phone calls about what happens when someone dies in a plane crash. As a public service, we wanted to provide some information to the general public. In any negligence case, the legal system asks two basic questions: …

Also in the search findings for “Buffalo Plane Crash” are these firms, among others, whose names did not appear at 6:51 this morning when I used this search phrase, leading me to believe that the Google Adwords accounts were edited to add words specifically for this accident while not using the words in the ad itself. (Or this is a Google issue where sometimes stuff shows up and sometimes not.) Here is the pdf:/BuffaloPlaneCrash2%[email protected]

Rosenberg, Minc, Falkoff & Wolff. The firm appears under NY Plane Crash Lawyers (nycaccident.com) and claims to be the oldest PI firm in NYC;
Masry & Vititoe, a California firm made famous by Erin Brokovich; and
Injury Helpline Attorney, an attorney search service, which shows what happens to law firms when they outsource their marketing to others.

I discussed this technique of using certain keywords in the Google Adwords system to make the ad pop up, while hiding the actual words from public view, in this post: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified. To actually prove ethics violations here would probably require subpoenas of Google’s records for the accounts due to variations on how Google puts up its sponsored results.

Natural Results:
Law firms might come up in the natural results if they wrote about the crash on their web site. Some have a “blog,” and I use that term loosely in this context, that does nothing more than run stories on local accidents. I discussed in December 2007 how such a blog can be used for attorney solicitation. As you will see this presents First Amendment issues. Writing about an event is one thing, but what happens when you tie it in with a solicitation? A story is run followed by “If you or a loved one has been killed or injured…” There are a million shades of gray as to how that is done.

Update #1 – And the first website I have found that hits page one of the natural results (search term: Buffalo Plane crash attorney) is Parker Waichman. Here is the pdf of the search: /BuffaloPlaneCrashAttorney2%[email protected]

When you follow the link you find a story of the accident right next to a “Free Case Review” for airline accidents. Note that “Buffalo Plane Crash Continental Flight 3407” is in the title bar for optimum search engine results. And that is a great example of how the First Amendment and New York’s anti-solicitation rules clash.

It’s important to note, by the way, that these rules apply to out-of-state attorneys who may try to solicit in New York (only to refer, the case, no doubt, to local counsel). That rule specifically states:

Extra-Territorial Application of Solicitation Rules

EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.

The rule also applies to “agents” of the firms, which to me means any of of the dozens of attorney search services that exist and who might break the rules while doing their marketing. The attorney who hired the firm would not doubt be “shocked” to find such conduct taking place.

I hate writing about this stuff in the midst of such a tragedy. But the brutal reality is that, after the Staten Island Ferry crashed in 2003 killing 11 people, the local paper was flooded with ads coming in that afternoon for the next day’s paper. With the new rules in place, it seems important to take a snapshot of the situation before any ads are run, to see how it contrasts with what will likely happen.

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

2/17/09 Update: DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients

Links to this post:

blawg review #200
could this be the end of the line? when we started blawg review with the question, “do you blawg?” in 2005, who would have thought this traveling carnival of law blogs would still be alive 200 weeks later? …

posted by Editor @ February 23, 2009 12:00 AM

buffalo plane crash
the client-chasing has begun on continental flight 3407, ably chronicled by eric turkewitz. tags: airlines, chasing clients. related posts. minutes after the flight 1549 crash…. (6); january 13 roundup (6); youtube lawyer ads (3 …

posted by Walter Olson @ February 13, 2009 2:10 PM

January 29th, 2009

NY Attorney Ordered Jailed/Fined For Failing To Release File (Updated)

Wow. You just don’t see this everyday. Attorney Kenneth Heller was representing someone who wanted to change lawyers. OK, that happens with some frequency.

But then he ignored successive court orders to release the file to incoming counsel, and Justice Howard Silver in the Bronx finally got disgusted and ordered him jailed for 30 days and fined $10,000 back in 2007.

Today, the First Department Affirmed that decision. Here it is:

Orders, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about January 26, 2007, March 9, 2007 and April 26, 2007, which, inter alia, held appellant, plaintiff’s former attorney, in contempt for failing to turn over his file to plaintiff’s successor attorney, authorized the seizure of the subject file, and sentenced appellant to 30 days in prison and a $10,000 fine, unanimously affirmed, with costs.

The finding of contempt and subsequent punishment and seizure order were warranted by appellant’s disobedience of successive court orders unequivocally directing him to turn over his file to plaintiff’s new attorney and the resulting prejudice to plaintiff’s right to a new trial in this action for maritime wrongful death (10 AD3d 46 [2004]; Judiciary Law 753[A][1]; see Matter of McCain v Dinkins, 84 NY2d 216, 226 [1994]). We note that motions by appellant asserting a retaining lien and seeking payment of his fee and disbursements prior to his turning over the file were denied in orders that were not challenged in a timely and proper manner and constitute law of the case. We have considered and rejected appellant’s other arguments.

Wowsa.

Update: Is this the same Kenneth Heller that was disbarred in 2004? How was he practicing law in 2007 if he was disbarred in 2004? The court wrote back then that, in addition to the charges before it, he had the following aggravating circumstances:

…respondent’s 24-year history of sanctions, which includes a 1999 private admonition from the Committee, sanctions by courts on five occasions since 1984, and sharp criticism by courts on at least six other occasions since 1980; respondent’s conduct during this disciplinary proceeding in ignoring evidentiary rulings, submitting evidence that had been ruled inadmissible by the Hearing Panel, and lacking candor in his testimony before the Referee; his persistent rationalizations in denial of his misconduct; and the lack of remorse or acknowledgment by respondent that his conduct was harmful and inappropriate.

A search of New York’s directory of attorneys only finds one Kenneth Heller, and it indicates he was disbarred.

See:

Attorney Disbarred for History of ‘Reprehensible’ Conduct (6/29/04, NYLJ);

A 75-year-old attorney has been disbarred for what an appeals court described as a history of “reprehensible, unprofessional behavior” that included threatening judges, defying court orders and disrupting the legal process.
New York’s Most Obnoxious Lawyer (4/10/07, Village Voice)

With so many jerks working as attorneys in New York City, you’d think there would be no way to determine who’s the single biggest pain in the ass. You could be wrong. The winner (or loser) is arguably Kenneth Heller.

Links to this post:

lawyer, jailed for holding client files, was disbarred anyway
the world’s worst bank robber, seen here yesterday, has a comrade in kenneth heller. heller was a local attorney whose client didn’t like the representation heller was giving her in a long-running case and switched lawyers. …

posted by @ January 29, 2009 4:58 PM