Category Archives: Attorney Ethics

 

September 22nd, 2008

"Metrolink Train Attoneys" Appear (And What If It Happened in New York?)

The Los Angeles Metrolink train accident that killed 25 people and injured over 100 others seems to have brought out the worst in a few attorneys, with ads and website popping up to advertise for victims. As reported by Kevin O’Keefe, even YouTube ads have been popping up.

It was exactly this type of disaster in New York that led to new ethics rules. In 2003, the Staten Island Ferry crashed, killing 10 people. And while victims were still being pulled from the wreckage, some lawyers had already contacted the Staten Island Advance in order to place ads for the next day’s papers. Thus was born New York’s new attorney advertising rules (some of which are being constitutionally challenged).

Regardless of whether any one particular rule is constitutional or not, one thing is clear: That those lawyers that leap after cases in such a fashion do a great disservice to the profession. The few who do this make the rest look bad.

Those seeking counsel for such an incident — indeed for any kind of incident — should avoid such people at all costs. They have merely shown that they have advertising moxie to get noticed, and bad taste in what they have done.

 

August 29th, 2008

New York Law Blogger Sued For Defamation (Updated)

Will Brooklyn lawyer Marina Tylo be spanked for a frivolous defamation suit against a New York law blogger?That is the question being asked by Scott Greenfield over at Simple Justice. It seems that Tylo screwed up by serving a Summons prior to purchasing an index number. That’s a no-no in New York, and has been for years. You have to first pay the index number fee to start the suit, then serve the summons.

Tylo was sued for legal malpractice as a result. But because the subsequent attorney still had time to rectify her blunder, the malpractice case against her was dismissed.

Andrew Bluestone, whose blog focuses on New York attorney malpractice, wrote the story up. Sort of. He actually just wrote a prefatory paragraph that introduced the decision. You can see his posting with the decision here: Serving a Summons before Buying an Index Number

But that blog post seemed to make Tylo upset. So she sued Bluestone, apparently because he had the audacity to report the story. Her claims include libel, negligence, gross negligence, intentional infliction of emotional distress, and “tortious interference with prospective contractual relations.”

According to her legal filing, this is the entire text of Bluestone’s allegedly tortious conduct, this being his introduction to the court’s decision:

Here is the full text cite for a legal malpractice case in which plaintiff’s attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07

That’s it! You want the definition of frivolous? You got it right there in that filing. A simple factual statement. He didn’t even offer his opinion, which of course, would be protected anyway under that little First Amendment thingie.

(Addendum: The exact definition of a frivolous suit is right here. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;)

And what kind of relief does Tylo seek? Aside from 10 million bucks, she wants Bluestone to remove his posting. The relief she requests includes:

  • A retraction of his “libelous” statement; and
  • “Removal of above stated statements, as well as other like and similar statements, from all publications, blogs and other media.”

Perhaps she thought that by suing him she could purge the Internet of this posting, so people wouldn’t see it when they looked her up. Tylo, of course, is not the first to have this brilliant idea of trying to purge the Internet of unfavorable references. She apparently has no clue about something called the Streisand Effect. (She also might find Dan Solove‘s book, The Future of Reputation On the Internet, to be of interest. Though reading it before filing suit would have been wise.)

So as a result of her idiotic suit against Bluestone she has drawn more attention to herself. Which probably wasn’t what she had in mind. Especially since others might now offer their opinions. Like Greenfield did. Like I do now. And those would be constitutionally protected opinions I might add, though frankly, anyone with a license to practice law in this country should already know that.

One last thing, by the way, since I found her bio. If she cares about her Internet reputation, she might want to put a bit more care into how she presents herself:

I am a very experienced and competant attorney. I finished NYU law school and have over 14 years expiernce in legal matters relating to Real Estate. Even though by using a great attorney such as my self you can save a whole lot of money I do not charge excessive legal fees. I also have a lot of expeirnce in investing and owning real estate and thus I am in a position to trully understand and appreciate any pitfalls associated with all types of real estate transactions including Litigation, Closings, Tenant issues, and transactional negotiational matters. I am licenced in the State of New York and all Federal courts, and Supreme Court of the United States. I will fight for my Clients tooth and nail to get the desired results.

Ms. Tylo, welcome to the electronic age.

You can find more on the subject here (updated periodically as more write on the subject):

“From the annals of the truly stupid comes this latest attempt to shut down a blawger.”

“If some books are destined to on the big screen, there are some lawsuits destined to appear at Overlawyered.com.”

“I can’t disagree with Scott, but the more salient point, in my view, is that Tylo chose the wrong defendant…”

“This wasn’t a very good idea, since filing a frivolous lawsuit against a law blogger is not the type of event that other bloggers will ignore.”

 

August 7th, 2008

Is SueEasy the Worst Lawyer Idea Ever? (Updated and Bumped to Add WhoCanISue.com)

This post originally appeared April 13, 2008. It has been bumped up due to another moronic entrant into the field of trolling for lawsuits. The new site, at the bottom of this post, is WhoCanISue.com. And it, like SueEasy discussed here, raises substantial ethical and litigation issues:
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When I first heard about SueEasy, I thought it was an April Fool’s joke. But it was October when it first appeared as a development concept (see 10/23/07 post:So How Did You Find Your Attorney? SueEasy!!!). Then I thought it must be a practical joke created by some tort “reformers” to highlight really bad advertising that sometimes takes place. Standard operating procedure is to use anecdotes to tar everyone else to win further protections and immunities for big business.

Sad to say, it has now gone live and appears to be yet another grotesque form of marketing, except that this one is actually dangerous and can help kill legitimate cases. (Note: SueEasy links provided by a TinyUrl redirect, so that this embarrassment to the profession doesn’t benefit from any PageRank by my linking to it.)

According to the site, “SueEasy is neither a law firm, nor is it a lawyer referral service.” That leaves only one thing, a marketing portal of some kind, presumably where lawyers buy space. These types of dumps are a dime a dozen on the web, and I get calls from them all the time. (See: The Ethics of Attorney Search Services.)

But unlike other attorney search services, this one has the potential for some serious damage in a unique way to both client and attorney in personal injury matters.

First, from the client perspective. One question you might expect at a deposition or trial will be this: How did you find your attorney? That doesn’t mean defense counsel can ask what was said, but they might certainly ask how you got to the lawyer you are using. Now can you imagine a jury finding out you used some company called Sue Easy? Perhaps a judge will allow the testimony, perhaps not, but I sure as hell wouldn’t want to be in a position to find out when the answer is SueEasy.

And since you may share documents or write something to this company that advertises it is not a law firm, that stuff you send may not be protected by the attorney-client privilege and may be discoverable (and possibly admissible at trial). Which is to say, that is a way for a defense lawyer to get the SueEasy name in front of a jury.

Here’s something else you might to consider: During jury selection one of the standard issues raised by defense lawyers is that anyone can bring a lawsuit. So if ever there was a way to reinforce that idea, contacting an advertising portal named SueEasy would do it. It’s like handing a big, fat gift to the defendants.

Second, from the attorneys perspective. You have not only shot a stomach churning hole in your own client’s case (and any fee you hope to recover), but you are also at the mercy of the advertising portal to act ethically. As I demonstrated in my other post on the ethics of these portals, this could be a real issue. For example, the site appears to be in violation of New York’s ethical rules because it fails to state that it is attorney advertising.

You might also note the site owners are too embarrassed to identify themselves, so a participating lawyer would be ceding their marketing to an anonymous individual or company. Imagine that, a lawyer putting his or her law license into the hands of anonymous people. Try explaining that one to the disciplinary committee one day.

If you agree to be marketed by that portal, the disciplinary committee of your state may well say that they are your agent, and you are responsible for the content of their site and the conduct of the employees. And they may not look kindly on the willful blindness defense that you will try. (“Really? The site did that? Oh, my, I’m shocked, just shocked to find out. I’ll have a talk with my people and maybe we’ll do something else. Oh, thank you so much for telling me, Madame Chair of the Disciplinary Committee.”)

So my advice to those seeking an attorney:

  1. Ask around first. Your friends, relatives and neighbors are the best place to start.
  2. Ask another attorney, even if outside the field you need. While you wouldn’t want a medical malpractice attorney to handle your real estate venture, and vice versa, there’s a pretty good chance that the attorney will at least know where to look for the right person.
  3. After you get a few names from the above methods, you can check out their websites to see if they give clues as to what field(s) the attorney(s) claim to be proficient in, and interview the attorneys as to other cases in the field that they have handled.
  4. An attorney search service such as Sue Easy is not just a bad idea, but a spectacularly bad idea, with this possibly be so dangerous as to harm your case or career. Any attorney who uses it for serious personal injury cases may well be committing malpractice.

This company is a bona fide twofer for defendants. They get both the horrible anti-plaintiff’s lawyer press and they get stuff they can actually use in the courtroom. I keep thinking this must be a joke, as no right-minded lawyer would ever affiliate themselves with this outfit. But I fear that is not the case.

See also:

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August 7, 2008 Update: Another idiotically named marketing business has popped up, called WhoCanISue.com. TortsProf goes in search of the mystery owners (and read the comments). Screen shots of the commercials for this business are here.

Any lawyer that participates in these operations is an embarrassment to the profession.

More on this at:

 

August 4th, 2008

Lawyers, Laptops, Borders and Confidential Client Materials

The Department of Homeland Security is now authorizing itself to seize laptop computers at border crossings, and to hold them for as long as they want. Not to look for hidden bombs in the guts of the machines, but to look at the contents of the documents that it holds. For lawyers crossing a border with sensitive attorney-client documents, a potentially huge ethical problem has been created with such a handover.

Courtesy of Scott Greenfield, I learn that the Washington Post reported:

DHS officials said that the newly disclosed policies — which apply to anyone entering the country, including U.S. citizens — are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

The policies state that officers may “detain” laptops “for a reasonable period of time” to “review and analyze information.” This may take place “absent individualized suspicion.”

Greenfield dealt with the issue from the standpoint of unregulated government power. Marc Randazza discusses the same news from the standpoint of moral outrage.

But this is a huge problem not just if you lose your laptop for a few weeks or months, but from the standpoint of actually handing over to the government confidential client information. That is, information that one is ethically prohibited from disclosing.

How does a lawyer with a laptop that contains his confidential files now cross a border if they are at risk of disclosing the confidences? This could be criminal investigations where the government itself is involved. It could be mergers and acquisitions. It could be anything.

And not just the laptop, but also the Blackberries and iPhones are at risk. If a laptop can be seized for an indefinite period, why not the handheld devices with all the messages from (or about) clients and pending matters? I wrote about this last year in iPhones, Attorneys and Ethics and the problem of turning over an iPhone (which has a non-removable batter) to some outside person for repair without the opportunity to delete the emails.

From an ethics standpoint, the lawyer crossing the border with client information has a whopper of a problem.

See also:

 

June 5th, 2008

Texas Lawyer Makes Obscene Filing. Now What? (Updated)

(There is now an update at the bottom of this post. This pleading was never filed.)

Now this is a Texas-sized blunder. In an answer to a lawsuit yesterday, defense attorney David Ayers of Houston called the claimant a “dumbass” and a “fucking idiot.” Oops. A copy of the filing is now at Overlawyered.

I will assume, based on the language that was used, that this filing was created as an internal joke at his firm of Werner Ayers, and that it was errantly filed instead of the real McCoy. There is really no other explanation I can think of other than, perhaps, it being intentionally done while in a drunken stupor.

But now what? This is a modestly sized firm of seven lawyers, doing corporate defense work in commercial and tort cases, and here is the type of story likely to get passed around. And around. And around. And that means they need to think in terms of three things:

  1. Sanctions from the court;
  2. Upset clients who aren’t keen on their attorneys acting this way; and
  3. Their Internet reputation.

On the first part, it seems that they must pick up the phone and call the judge immediately, if they haven’t already done so. Explain exactly what happened, that it wasn’t meant to be filed, and hope the judge has a Texas-sized sense of humor. Then beg for mercy. And cite, hopefully, a previously unblemished ethical record.

On the second part, I note from Ayers’ biography that he has one client in particular that apparently gives him a lot of business:

David Ayers, partner, serves as national defense counsel, coordinating and defending a mass tort docket across the country for a Fortune 100 company

Call the big client. And all the other big ones too. And the small ones. It’s better that they find out from you than to hear than to about it from others. Or from the newspapers.

The third part is trickier. Because it is the type of story to be picked up by a wide variety of blogs, both in the legal blogosphere and in traditional media, and that means that for years in the future when people Google the firm name or the lawyer’s name this incident is likely to pop up on the first page. And so picking up a copy of Dan Solove‘s book, the Future of Reputation on the Internet, would be a wise thing. (Or read it for free.) If they don’t understand the potential of such an incident, this book and the potential flurry of blogging on the subject might swiftly bring it home.

So here is what I would do: Create a blog. Why? Aside from there being many good reasons to create a blog, something Kevin O’Keefe writes on often, one that should not go unnoticed is that a well-written blog will eventually knock the screw-up off the first page. In a year it could be very deeply buried for anyone doing a quick, routine look-up of the firm. A dumb mistake just seems less important when it pops up on page five than on page one. So a blog will bring the twin benefits of demonstrating expertise in an area and deep-sixing the blunder. It will take time, but it will happen.

In some fashion this isn’t much different than the story of Flea, who was blogging his own medical malpractice trial under a pseudonym and saying things you wouldn’t want a jury to hear, only to get busted on the witness stand and then outed on the front page of the Boston Globe. And so the things that I discussed a year ago in Flea and Crisis Management very much apply here also. This is the type of event that they have to be proactive about in order to limit the damage.

Updated 6/6/08): I received a call from a partner at the firm, Scott Raynes. He alerted me that this was an internal practical joke, and that this was never filed. His comment on Overlawyered (#4) is reproduced here:

This was never filed. It was a joke within our office: this fake answer was created and doctored to make it look like it had been filed. It was then forwarded to Ayers, the partner on the case. Once David recovered from the shock and realized it was in jest, he forwarded it to the plaintiff’s lawyer (an old friend of his back when they were at Fulbright & Jaworski together) to share in the joke. The plaintiff’s attorney called Ayers to confirm that it was, indeed, a prank. There is no such filing in the case.
Scott Raynes
Werner Ayers, L.L.P.

A big thumbs up to the firm on knowing a thing or two about damage control for a joke that went a bit out of control. They’ve utilized comments on the blogs that referenced it and picked up the phone to make a call to make sure it got immediate attention.