March 26th, 2014

NJ Files Ethics Complaint Against Rakofsky (And Why It’s Important to You)

The New Jersey Office of Attorney Ethics has filed a Complaint for misconduct against Joseph Rakofsky. It’s dated December 16, 2013, but hasn’t been previously reported.

There are two main issues in the Complaint. The first deals with the way he described his prior legal experience in web site advertisements. The second with the way he sought business in states where he isn’t admitted to practice law.

For the reasons below, I think this is a pretty important case to follow that affects all lawyers, regardless of whether we advertise or not.

But first, a very fast primer for those new to the Rakofsky saga: He was a recently admitted New Jersey attorney advertising his services in New York and other states, claiming vast experience. He then went down to Washington D.C. to try his very first case — a murder trial.

He didn’t do well, with the judge declaring a mistrial part way through citing, among other things, his lack of competence.

The Washington Post picked up the story of the trial, and then bloggers picked up the WashPo story and added more, regarding (among other things) the subject of his advertising and its relationship to his actual legal experience. Then he committed career suicide by suing a boatload of bloggers for defamation, including me, in a case quickly dubbed by Scott Greenfield as Rakofsky v. The Internet.

He then amended the suit to add those that skewered him for starting the suit. The case was finally dismissed last year.

Primer over. Read those links if you want more (or some of the 101 links here), as it’s time to turn to the nuts and bolts of the ethics complaint and his response. But I really only want to touch on one issue, and will leave the rest for others, as I am local counsel to many of the people sued. What you get here today, therefore, is mostly just a few facts and only limited opinions.

The first of the two subjects the ethics complaint touches on is the way he advertised himself, among many other claims, as having:

worked on cases involving Murder, Embezzlement, Tax Evasion, Civil RICO, Securities Fraud, Bank Fraud, Insurance Fraud, Wire Fraud, Conspiracy, Money Laundering, Drug Trafficking, Grand Larceny, Identity Theft, Counterfeit Credit Card Enterprise and Aggravated Harassment.

And the problem identified by the Office of Attorney Ethics is that he had barely any experience at all and inflated the importance of brief stints at a few firms, some no more than a few months long. The Complaint maintains that this was misleading advertising. In his answer to the Complaint, Rakofsky states that one of the mitigating circumstances for his conduct was that he was “young and inexperienced.”

The second issue had to do with his advertising his services in Washington D.C. and New York (and Connecticut, though that isn’t cited in the Complaint), even though he’s not admitted in those states. That is a big no-no. His defense, culled from his answer, is that he was a partner of some type with Sherlock Grigsby in Washington D.C., who was local counsel to the murder trial, and with Richard Borzouye in New York, who was local counsel here as Rakofsky sought pro hac vice admissions in several matters.

The exact nature of those relationships is described by Rakofsky’s counsel in the answer as “partners in that they shared expenses and referrals of cases providing access to other jurisdictions.” This, he seems to argue, lets him advertise that he has an office for the practice of law in other states. Rakofsky’s counsel asserts, in fact, that “This was intentionally his business model.”

Now there is a lot of meat and potatoes for others to analyze within those documents — competence, partnerships, advertising, solicitation, unlicensed practice of law and more — but this is the part that I wanted to discuss: When these twin issues of misleading advertising and practicing law outside his own jurisdiction were brought to the attention of the New York judge that heard the motions to dismiss in our defamation case, he rejected it all. He called it, quite charitably, mere “puffery” and moved on. (See Transcript 4.8.13, at page 38-40.)

Other judges might have been livid and lowered the boom on him, not only sanctioning him but referring him to the District Attorney for potential prosecution regarding the practice of law without a license. I think most people believe he got off very easy.

There will be a hearing in New Jersey at some point in the future on the ethics charges, though it’s not yet scheduled. My understanding is that such hearings are open to the public. The Complaint and answer in this matter are likewise public and I’ve provided them at the bottom of this post.

New Jersey is, therefore, very much unlike New York, where most disciplinary matters are kept hush-hush. Attorney Dominic Barbara, for example, infamously racked up nine Letters of Caution, nine Admonitions, and two Advisements without the public knowing, before finally being suspended. But it was only then, at the time of suspension, that all those other sanctions came to light.

New York and New Jersey couldn’t be more different, it appears, in how they handle ethics complaints.

The issue of lawyers exaggerating their experience in a misleading way has percolated among many law bloggers, often summed up by the now-ancient (1993) New Yorker cartoon that I used as art work above, “On the internet, nobody knows you’re a dog.”

The instances of ethics committees trying to hold lawyers accountable for internet advertising are few and far between, and it’s clear that the attitudes of ethics panels will differ between states. While I obviously have a personal interest at stake, I can’t help but think that an objective viewer will find some pretty important lessons that emerge when the smoke has cleared, and possibly new case law.

The matter deserves to be watched — not to kick Rakofsky again — but to see how a state ethics committee will handle issues of misleading advertising on the internet. While the standard of what constitutes misleading is no different than a dead-tree Yellow Pages ad, the reality is that vastly more information can be put up on a website. And that means greater opportunity to “massage” a biography, and greater ease for lawyers to advertise their existence in jurisdictions where they aren’t admitted to practice.

The ultimate decision in this ethics case will matter to to us all. Because even if you don’t advertise, our collective reputation as attorneys is affected by those that do.

The Office of Attorney Ethics Complaint is here:ComplaintAndExhibits (December 16, 2013)

Rakofsky’s Answer is here: Answer Rakofsky (January 27, 2014)

March 12th, 2014

Speeding Along to Break Ethics Rules in Gas Explosion (Updated)

Well, that didn’t take long. As I sit here pecking away at the keyboard, firefighters and search teams are swamping the site of a huge gas explosion in Harlem that took down two buildings, killed at least two, and injured many others.

The explosion took place at 9:30. The first attorney ad went up on Twitter within hours. The winner in the race to the bottom? [Updated, name deleted.) You can see a screen shot of his Twitter feed here to the right [deleted].

And if you can’t read the graphic, here it is in all it’s ugly glory, via his Twitter feed, @NY_InjuryLawyer:

Were you or someone that you know injured in the #eastharlem explosion? Contact [deleted] at 1-800-[deleted]. #harlem #explosion #nyc

(Update, 3/13/14: The firm has now deleted it from Twitter…see below for explanation.)

As regular readers all know, New York has a 30-day anti-solicitation rule in our Rules of Professional Conduct. It goes like this:

Rule 4.5(a) In the event of a specific 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 representing actual or potential defendants or entities that may defend and/or indemnify said defendants, 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.

The last time I wrote about this was December 2, 2013, when Proner and Proner were running ads after a train derailment in the Bronx.

And at the risk of repeating myself, yes, this is a solicitation within the meaning of the Code because it is targeted to a specific group of people:

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.

What I found interesting was that, in the weeks after that accident, I spoke at a seminar on the subject of attorney ethics and solicitation. Incredibly, there was someone there trying to defend the practice of violating an explicit rule on solicitation. His rationale? That there existed some type of generalized duty of lawyers to inform the public of their legal rights.

Let’s be clear on this. Soliciting within 30 days seems to be a pretty clear violation. I can’t foresee anyone being able to lawyer their way around it if called on the carpet by the disciplinary committee.

The only real question is whether the disciplinary committees will turn a blind eye to what is going on.

Update, 3/13/14: I received a call from a very distressed support person for the lawyer — she is in charge of the social media for the firm and is the one that did the tweet. She told me that she posted the tweet without having it reviewed by her boss, which was her mistake.

I told her that the mistake was not hers, but the lawyer’s, for outsourcing his marketing to a non-lawyer who didn’t know the Code of Professional Conduct, and noted the formula: outsource your marketing = outsource your ethics.

She corrected me, and noted that she was supposed to get approval. Thus, the fault lies with her.

A couple of things worth mentioning. First, I always give brownie points for people that ‘fess up when they’ve made an error. I wish our politicians would do the same.

Second, there were no threats of any kind. It was, in all respects, a very polite request made by phone. She had the voice (and integrity) of the type of person a lawyer would want as a support person.

Finally, I’ve elected to delete the lawyer’s name from the text, and pulled it off the category heading. It is still on the graphic [edit: changed my mind, now that is gone also], but graphics aren’t searchable by Google.

So it now stands as another example of the risks of social media, as well as an excellent example of how to cure a foul up. This morning the firm had lemons. Now it has lemonade.

hat tip: Andy Barovick

December 2nd, 2013

Proner Law Firm Violating Ethics Rules Over Train Accident? (Again?)

Screen Shot of Proner & Proner Ad on YouTube, 9 pm on December 1st, with YouTube noting it had been up for 11 hours.

Well, there they go again. It was just this past May that I took the New York law firm of Proner & Proner to task for stepping all over New York’s attorney ethics code with regard to a local train accident, and they seem to be back at it again. Yesterday’s deadly train derailment in the Bronx occurred about 7:20 am. The Proner law firm ran their first ad on YouTube within hours.

Let’s review, shall we?

In the wake of the 2003 Staten Island Ferry crash that killed 11 — and the race by some law firms to run ads in the Staten Island Advance before all the bodies had even been pulled from the wreckage — New York updated the Rules of Professional Conduct to stop the unseemly chasing of cases soon after a tragic event. This is our 30-day anti-solicitation rule:

Rule 4.5(a) In the event of a specific 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 representing actual or potential defendants or entities that may defend and/or indemnify said defendants, 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 just to be clear about what solicitation means, yes, it seems to mean doing something exactly like this — targeting a specific group. Read for yourself:

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.

I’ve written about this 30-day rule often, first after Captain Chesley Sullenberger splash landed a plane in the Hudson, then after a plane crash in Buffalo.

And most recently, I brought it up with this same firm, Proner & Proner, after another Metro-North derailment in Stamford Connecticut, when they apparently did the same thing they do today — use YouTube to solicit cases, despite our anti-solicitation rule. I counted stock videos uploaded in the hours after the accident, all of which have keyword loaded text to accompany it. See the screen grab above.

This makes Proner & Proner the second firm to get dishonorable mention twice on this blog for the same infraction. (The first went to Ribbeck Law after plane crashes.) I’m willing to bet, given that Proner has over 1,000 YouTube videos, that this type of conduct is probably standard procedure for them.

Why write about it again? Apparently, because those in charge of doing the disciplining either:

1. Don’t read this blog / didn’t notice; or

2. They did notice but don’t actually care enough to do anything about it.

I sure hope it is the former and not the latter, because the idea that the courts would institute ethics rules but not follow them isn’t a thought I like to contemplate. Since I happen to think that the 30-day rule works, I likewise think it’s important to enforce it.

It’s also important to note, as I always do when taking a firm to task when my eyes see as ethical issues, that there are very few firms that do this. But those that do serve to influence how the public feels about lawyers. And when I go pick a jury on behalf of my own clients, my clients are the ones that suffer from the deep cynicism that such conduct creates. This is not just my opinion.

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.

It should be the obligation of attorneys to improve upon the system of justice, not bring it down.

October 31st, 2013

Can You Secretly Record the Medical-Legal Exam?

Over the summer I did a series of pieces on Dr. Michael Katz, who got busted by a judge for lying under oath about the length of the medical-legal exam that he did on the defendant’s behalf. He was claiming it was 10-20 minutes or so, yet a secretly recorded video had him at just one minute and 56 seconds. The judge wasn’t pleased.

A mistrial was declared and the good doctor was referred to the District Attorney for possible perjury prosecution, to the Administrative Judge for possible civil contempt and to the Department of Health – Bureau of Professional Medical Conduct to evaluate his fitness to practice medicine.

I covered a lot of angles in that series, even doing original research on the length of exams by other “frequent flyer” experts that insurance companies rely upon, and finding an average length of under five minutes for those I looked at.

But one piece was missing from my series: Is it permissible for plaintiffs’ representatives that accompany them to these exams to surreptitiously videotape the doctor doing the exam, and if this is done, does that video need to be exchanged? The reason it was missing is that there really isn’t much in the way of law in this area.

To be sure, Justice Duane Hart‘s initial reaction in the Katz case was that this was improper conduct by the plaintiff, and initially sanctioned him. That sanction was withdrawn, but in the process he had also declared a mistrial on a case that had been going for a month. The problem that Justice Hart had to wrestle with is that there is no statute governing this and little case law.

This week on that subject, in the New York Law Journal, comes an article by Ben Rubinowitz and Evan Torgan (Turning the Table: Cross-Examining IME Doctor Using Video of Exam, $ub). They are, by all measures, well respected attorneys here in New York, and these guys frequently lecture on various aspects of personal injury practice.

In the absence of either statute or case law to analyze whether it’s acceptable to video, they turn to ethics opinions. But:

[T] he ethical opinions regarding secret video-recording specifically fail to provide clear guideposts for attorneys. For example, the American Bar Association, in opinion 01-422, found that, in general, undisclosed taping by an attorney or his agent was not in and of itself prohibited. In accordance with that opinion, The New York City Bar modified its previously held position that undisclosed videotaping was unethical, holding that such conduct was permissible, but only where the lawyer “has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good.”

What constitutes “a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good”? Good question, glad you asked. And no, I don’t have the answer because such answer does not (yet) exist. Do I think it is a generally accepted societal good to catch a doctor doing a 2-minute exam that he claims was a 15-minute exam? Yep, I sure do. The scoundrels should be purged from our midst if we would like our system of justice to have more integrity.

It’s unclear to me why recording such exams should be a problem. Defendants, after all, are free to do secret surveillance of plaintiffs. Why shouldn’t a plaintiff be able to do likewise to the defense medical examiner, especially when we have excellent reasons to believe there is widespread corruption going on? The doctor isn’t even a party to the action.

Back to Rubinowitz and Torgan:

As it relates to personal injury actions, defense attorneys have become well versed in the use of videos to discredit a plaintiff’s claim of injury. While the law regarding the surreptitious taping of a plaintiff in a personal injury action has developed over many decades the issue of the propriety of the taping in the first instance and its disclosure seems to have been answered: There is no prohibition against such taping and there are now definitive time periods in which disclosure of the video must be revealed.

When it comes to the videotaping of the IME, however, the law is not so clear. In New York not only is there no statute directly on point but there is a paucity of case law supporting or prohibiting such conduct. The question that will likely be addressed in the near future is whether the plaintiffs attorney or his agent should be permitted to videotape the independent medical examination, and if so, when disclosure should be made. Many see no difference between the defendant’s right to surreptitiously videotape the plaintiff and the plaintiff’s right to surreptitiously videotape the IME. Both the plaintiff and the defendant are seeking to use the video for a similar purpose: to discredit the credibility of an individual through the use of extrinsic proof.

The sooner this gets resolved by the appellate divisions, the better, perhaps with a bit of help from the various ethics committees. But from were I sit, there is simply no sound reason to object to the practice. Every other formal part of litigation where evidence may be presented to a jury is recorded somehow, without exception. That a doctor would be able to claim something happened at a medical-legal exam — which is very much a formal procedure — when the plaintiff says no such thing happened, is very easily remedied.

Why would anyone be upset about making the process more honest? Why should there even be ambiguity over how long the exam took or whether certain tests were done? As I noted over the summer when discussing next steps for this problem, technology is now completely unobtrusive. And with Google Glass coming along, the filming couldn’t be easier.

October 23rd, 2013

A Lesson In Ambulance Chasing…

Want to know how ambulance chasing works? From the Appellate Division (Second Department) comes this story of attorney Henry Lung, censured today.

The name of the runner or investigator is Virginia Mello. She finds the potential client in a very big automobile case in 2005. Mello is not an attorney.

Lung makes this offer to Mello: That if she gives him the case, he will then flip the case to a reputable firm in exchange for a referral fee to him of, I assume, 1/3 of the legal fee. And Lung, in exchange, will then give Mello 10% of his share. In cash.

The conspiracy is entered into and the case is then referred to Sullivan Papain Block McGrath & Cannavo, a well-regarded law firm that presumably knows nothing about the shenanigans that took place. They take the case in 2005 and settle in 2008 for $4.1M, a whopping big sum. Lung is given a $450K referral fee for the legal work that he did.

Lung then proceeds to make his cash payments to Mello…as per the decision today:

Subsequent to receiving his share of the attorney’s fee, [Lung] made cash payments to Ms. Mello in the sums of $11,500 in 2008, $8,500 in 2008, $8,650 in 2009, and $3,000 in 2009, as compensation for referring [the plaintiff] to him.

Thus, Lung gets censured by the Appellate Division on two separate issues:

Compensating a nonlawyer for recommending a client, and rewarded that nonlawyer for having made such a recommendation, resulting in employment; and
Sharing a legal fee with a nonlawyer

And Lung seems to have some other problems as well, given that he has previously been sanction for misconduct:

[T]he respondent has a prior disciplinary history consisting of a Letter of Admonition, personally delivered, for negligently converting client funds, commingling personal funds with client funds, and communicating with a party known to be represented by counsel (March 2005); a Letter of Caution for failing to enter into a written retainer agreement with a matrimonial client and failing to provide the client with a Statement of Client’s Rights and Responsibilities (February 2006); a Letter of Caution for improperly seeking to limit his individual liability to a client for malpractice (February 2006); a Letter of Admonition for, inter alia, neglecting a client’s legal matter, improperly notarizing documents, and submitting a falsely notarized document to a court of law (February 2010); and a Letter of Admonition for improperly issuing a subpoena duces tecum in a criminal action (September 2011).

What can we conclude from this? First, that he has a damn good defense lawyer. I’m stunned that Lung wasn’t disbarred, or at least suspended from practice. And I don’t see anything in the opinion about the need to disgorge the remaining part of the referral fee that he received.

Second, I often write about people outsourcing their marketing to others, such as those that sell “leads” on cases. And the question is, how were those leads procured? This is an example of how a dirty activity got laundered.

Third, let this be a warning to those that think allowing nonlawyers to buy an interest in a lawfirm is a good idea.

Fourth: The legal proceedings may not be over for Lung or for Mello. I don’t do criminal defense work, but I see an awful lot of cash flowing to her. Do you think Mello declared that money on her tax returns? How did Lung deal with that tax issue?

I’ll let the criminal defense folks weigh in on that one. But in the meantime, I think that part of his Avvo profile that says “No professional misconduct found” will be changing shortly.