Category Archives: Attorney Ethics

 

February 15th, 2007

Slip and Fall — Attorney Disqualified From Representing Wife

A Nassau County slip and fall case ran aground when the laywer-husband of the injuried plaintiff was found to be in violation of an ethical rule. The accident occurred in the parking lot of a restaurant. The husband had a loss of consortium claim and appeared pro se, and also sought to represent his wife.

It seems, however, that he was not only the husband but also a witness to the accident. While he could represent himself pro se, he could not represent his wife since that violates the lawyer-witness rule, DR 5-102 1:

A lawyer shall not act, or accept employment that contemplates the lawyer’s acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client.

The attorney tried to get around this by saying that he was not employed as the attorney of record for his wife, that his wife was also pro se, and that he had a power of attorney to appear at conferences for her. The court rejected this rather creative argument.

A nice exposition on the law by Justice Lamarca in Nassau. The case is Smolensky v. T.G.I. Fridays.

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February 8th, 2007

Rudy Giuliani Among New York Attorneys That Violate New Ethics Rules

Rudy Giuliani is apparently in violation of New York’s new ethics rules that went into effect one week ago. The former U.S. Attorney for the Southern District of New York, mayor, and now presidential candidate, has failed to label his firm’s web site as “attorney advertising” as required by the new Disciplinary Rules. Law firms large and small, famous and not, with New York offices continue to show widespread ignorance or disregard for the new rules on attorney advertising. While some may have constitutional concerns, only one is known to have brought a legal challenge on that basis.

Despite front page treatment of the news in the New York Law Journal and wide discussion in blogs since the proposed rules were announced last June, a great many firms have committed an ethical violation. (For a presidential candidate, among others, that’s probably not good.)

I wrote last week of the failure by 11 of the largest 15 firms in the nation (with New York offices) to comply with the easiest part of the rules, putting the words “attorney advertising” on the home page of their web sites. This was picked up by Law.com Blog and WSJ Law Blog giving the news a bit more distribution. Many have since complied. A few that are currently in violation of the ethics rules:

Since a Google search of New York attorneys returns 16 million hits, I didn’t spend too much time on this. It appears clear though from a brief spin through sites large and small that compliance failures are common.

There are a few possible reasons:

  • Ignorance – Some lawyers don’t keep abreast of changes in the law (or in this case, disciplinary rules);
  • Assumption that someone else has taken care of it;
  • Vagueness of the rules: As I wrote last week, the rules apply if the “primary purpose” of the web site is the retention of clients. That definition is both vague and over broad and, I think, is likely to fall to constitutional challenge.

Personally, I think the primary reason is the first: Ignorance. This is not based on scientific survey, of course, but on a version of Occam’s Razor: All things being equal, the simplest answer tends to be the right one.

Other links to the subject:
New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site)
New York Advertising Rules (Sui Generis)
Some More Discussion About New York’s Attorney Advertising Rules (New York Civil Law)
NYSBA Rules Fiasco (The Common Scold)

[Update 2/15/07: Rudy Giuliani Finally Complies With New York Ethics Rule)

 

February 2nd, 2007

Who, Exactly, Must Comply With New York’s Attorney Advertising Rules?

The vagueness of New York’s new attorney advertising rules is bound to cause First Amendment problems. Speech is restricted with the use of vague terms.

Yesterday, I published a list of major law firms with New York offices that had not complied with the easiest part of the new attorney advertising rules, marking their home page as “attorney advertising.” (Some have since added the words.) While I poked a bit of fun at them in the process for not doing so, some can possibly make an argument for not putting the words up by claiming that the retention of clients is not the “primary purpose” of the site.

This is illustrated by a Carolyn Elefant post at My Shingle that inevitably leads to yet more issues. She is admitted to practice in New York, but her energy regulatory practice is out of Washington D.C. She says she won’t put the Scarlet A of advertising up because her web site is multi-dimensional and advertising isn’t the “primary purpose.” She acknowledges though, that “one purpose of my website and blog is to retain clients.”

So how, exactly, will “primary purpose” be defined? And does that refer to New York clients being the “primary purpose?”

I wrote of the vagueness issue when I asked, Is My Family Photograph An Ethical Violation in New York?, and followed up with another post here. There are more problems with phrases such as “techniques to obtain attention” and portrayal of lawyers “exhibiting characteristics clearly unrelated to legal competence.”

Two other law firm examples before I go, which are the bookends to Ms. Elefant’s gray area of the “primary purpose” of a web site: Nicole Black over at Sui Generis has a website for her business doing work on a contract basis for New York firms. Since the rules do “not include communications to …other lawyers” her site need not have The Mark.

My own site as a New York personal injury attorney, however, has The Mark at the bottom. While I think many of the rules will be struck down as unconstitutional due to their vagueness, I must face the reality that personal injury firms were the target of much of the rules. And I’d rather write about the issues than be the test case.

The litigation has already started, covered in this post at Sui Generis, complete with link to the Complaint.

 

February 1st, 2007

Major Law Firms Ignoring New York’s Ethics Rules on Advertising

Despite New York’s new attorney disciplinary rules on advertising going into effect today, and despite months of discussion, most major law firms have apparently failed to comply. The list below includes 11 of the 15 largest firms in the nation.

A review this morning of firm web sites with offices in New York finds that the following are not marked as attorney advertising on their home page (or even their New York page if NY is not the home office), as the new rules mandate:

If these firms have it, I couldn’t find it.

This is not, by any means, an exhaustive list. It is the point I stopped after realizing that most major firms with New York offices were apparently violating the ethics rules by failing to mark their site appropriately. With some of these firms now paying $160,000 per year (plus bonus) for the best and the brightest, I’d love to hear the excuses they give.

The failure to comply is not limited to the big firms, of course. A quick Google search with “New York [insert specialty]” finds the problem to be widespread.

(Nicole Black, over at Sui Generis, likewise noted the lack of compliance, and also wrote of a lawsuit to be filed today challenging the rules)

What the New York judiciary will do about this is any one’s guess. Mine is that they send out a spate of warning letters demanding compliance under threat of reprimand. If they fail to enforce, then the new rules become like jaywalking…an unenforced law. And that would only hurt the credibility of the courts, which means that enforcement must come. (And yes, my own law firm website is in compliance.)

For more on the issue:

[Addendum: As of 1:52, EST on 2/1/07, two of the firms above have complied (either I didn’t see it before, or they added it: Weil Gotshal and Hogan and Hartson (in itty bitty, light colored font)]

Follow-up post at this link.

 

January 28th, 2007

More on the need for civility in court…

Howard Bashman (How Appealing) comments today in a nice article at Law.com (Decorum on Appeal: When Judges Are Under Attack) on the recent Utah Supreme Court decision to sanction a law professor $17,000 for the disrespect he showed to the appellate court below. I wrote about this on Friday, with a link back to the ABA article on the subject.

Bashman’s treatment of the subject is good reading for anyone that intends to litigate anything.

What was also interesting about the decision is that the court didn’t decide the merits of the appeal. I suppose, theoretically, there is a legal malpractice case there as a result of the client losing his case like that. But in order to prevail, the plaintiff must ultimately end out back in the Utah Supreme Court and get a reversal of the lower appellate court ruling.

That sounds like a long, miserable experience, and judicial economy doesn’t seem to be served here without a decision on the merits when it first appeared before the court.