August 2nd, 2013

Ribbeck Law in Hot Seat (Again) Over Air Crash Solicitation

Back in 2009 I wrote a couple times about Chicago based Ribbeck Law Firm’s attempts to procure clients after a plane crash in Buffalo. I questioned whether it was violating both New York’s 30-day moratorium on contacting victims/families as well as the federal 45-day rule that prohibits solicitation.

Now, according to this Associated Press article, they are in the hot seat over accusations of unlawful solicitation regarding the crash of Asiana Flight 214 in San Francisco. The National Transportation Safety Board has reported the firm to the agency that regulates attorneys for further investigation of its online communications and in-person meetings with passengers, presumably referring to its disciplinary commission.

According to the article, Ribbeck is the only firm that warranted such referral (so far). The referral came because because the NTSB “received an unspecified number of complaints about solicitations since the July 6 accident that killed three Chinese teenage girls and injured 180.”

Let me say, having covered Ribbeck’s conduct in the past, I’m not in the least bit surprised.

When I covered the crash of Continental 3407 in Buffalo on February 12, 2009 — covering it specifically to see if any firm was violating a new anti-solicitation rule in New York — Ribbeck popped up on my radar. Actually, it popped up on my Google search along with six other firms chasing cases.

The firm was the focus of two posts that I made. The first, on February 16th, detailed how it set up a website (www.continental3407.us ) specifically to solicit for the crash and ran Google ads to direct victims to the site.

The second one, a week later, pointed out that six out of the seven firms had yanked their ads down after my post ran. One did not. Ribbeck was still at it. But it modified its call to action (Please feel free to contact us at …) to now have merely expressions of sympathy, passenger lists, news, a “legal zone,” and contact information. Not very subtle.

Back then I focused on my opinion that Ribbeck had failed all four prongs of New York’s anti-solicitation test (as opposed to the federal prohibition).

Three days after my post appeared, entitled Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims? (And A Round-Up) , I wrote about how Ribbeck had also pulled down its ads. Perhaps they realized they had stepped over the line, or perhaps all the important contacts had already been made, or something else. I don’t know, no one called to let me know.

My decision to search for firms that might violate these laws was not accidental. In fact, the day after the Buffalo crash I wrote about how I would be looking, as this was going to be the first real test of New York’s then-new ethics rules on solicitation. It was during this same time frame that I wrote about how attorney ethics can be “laundered” with a variety of subterfuges: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.

It’s taken a few years to get to this point, but it’s a point that I knew was inevitable.

The federal law that prohibits solicitations within 45 days, by the way, is 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.

Perhaps we will see soon how that rule gets interpreted within the era of website and online solicitations. But one thing is certain, this isn’t new stuff for Ribbeck. They’ve flown this route before.

May 22nd, 2013

Metro-North Derailment/Collision and Attorney Advertising

Photo Brian Pounds; Stamford Advocate

This post asks lots of questions; it doesn’t necessarily answer them. It might make a decent bar exam question.

At 6 pm last Friday, a Metro-North commuter rail train derailed and was then hit by another one in Bridegeport, CT. Many injured, and thankfully no one killed.

For those that don’t know, this is the busiest commuter railroad in the nation connecting New York City’s Grand Central Terminal with numerous points north (up into New York) and east (into Connecticut). I ride this system almost every day, on the same line where the collision took place, but closer to the city and thus unaffected.

This is a New York train system, with Connecticut owning its the rails and stations on its turf and Metro-North maintaining the entire thing.

Enter, stage right, the lawyers, many of whom would like to sign up the cases, especially since the National Transportation Safety Board will do all the hard work of investigating, and no one can blame the injured passengers.

That means it’s time for some folks to advertise. I’ve written on this subject many times in the past, in the wake of a Metrolink accident in California, a plane crash in the Hudson River and in Buffalo and a Staten Island Ferry collision with a pier. Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters)

I did a quick search and, it didn’t take me too long, stumbled on a YouTube ad for the firm of Proner and Proner. A screen grab is to the left. The video part is generic lawyer advertising about what they do and how long they have done it. You will not be impressed.

But.

The web copy under the YouTube ad, posted the same day as the derailment/collision, says:

Metro North Train Accident Bridgeport, CT (866) 209-4366 Connecticut Lawsuit Settlement

And as you can see in the right side bar of the YouTube commercial, there seem to be five such ads. They all appear identical, except for different keywords used in the titles. The law firm marketeers were obviously all over this.

By way of background, before you read the question below, this is New York’s 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.

So here are today’s questions, given that this is an accident in Connecticut, not far from the New York border. One train was headed toward New York and one was coming from here:

1. Which rules on solicitation and advertising govern? New York has its 30-day anti-solicitation rule for mass accidents. The site of the collision is Connecticut. Do the rules differ depending on the location of the lawyer, the victim or the incident?

2. Proner and Proner claims to have five offices in New York, and one in Connecticut. Yet their website, which I won’t link to, lists only two lawyers. Yeah, I smell marketeers at work here also trying to make a small firm look big. Must they comply with New York’s anti-solicitation rules as they race after Connecticut clients?

3. Metro-North is a public benefit corporation incorporated in New York.

4. Is there any doubt the ads target New Yorkers (in addition to others)?

An interesting bit about our rules is that there is a separate area that defines solicitation is (Rule 7.3), making no mention of the location of the client, the defendant or the incident:

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.

And in another that rule proscribing solicitation there is a separate part that is specific to soliciting people in New York:

Rule 7.3(c) A solicitation directed to a recipient in this State shall be subject to the following provisions:

Does that mean that the 30-day rule is for those admitted in New York, regardless of whether the client is in New York?

The thought of this law firm (probably more, I didn’t look) racing on the very day of the collision to get its advertising up and running, no doubt while rescue was still underway, reminds me of the Staten Island Ferry collision of 2011 that killed 11. There were law firms, at the time, racing to put ads in the Staten Island Advance before the late afternoon deadline on the day it happened. People were still trapped on board the vessel. It was just that type of unseemly conduct that gave rise to New York’s 30-day rule.

Will Proner and Proner, or another firm, be the poster child for yet more regulation? I don’t know, but I also have no doubt that an investigation would find much, much more going on than the small snapshot that I write about today.

On a final note, this type of conduct takes places with only a very few firms. Yet, as with most things, it is the outlier actions of the few that tarnish the image of the majority.

My two drachmas for the day.

January 14th, 2013

Personal Injury Lawyers Sue Other Personal Injury Lawyers Over Solicitation

I can’t say I’m sorry to see this kind of lawsuit. Citing unfair trade practices, several Florida personal injury firms have brought suit against their brethren. The problem? Accusations of using “runners” to get clients, also known as ambulance chasing.

The concept of chasing cases has long been a stain on the profession. I know I am not alone in being upset to see our reputations tarnished by the less reputable. Whenever any member of a community acts inappropriately, it affects the reputations of others. Decent cops and priests know all about this concept when they see wayward others from their insular communities in the news in unflattering ways.

Personally, I think outing chasers is a good idea, something that I have written about before (Ambulance Chasers, Runners and Other Creeps). In that 2009 post I wrote:

The message should be loud and clear: If you employ runners to chase cases at the local hospitals you shouldn’t be practicing law. And it should be equally clear that the vast, vast majority of attorneys look down with utter disdain on such conduct. Without question, most of the lawyers that I run into, on both the plaintiffs and defense side, practice law conscientiously and ethically. The corrupt ones should not expect others to come to their defense.

When lawyers practice unethically it tarnishes the entire profession and makes it more difficult to represent those in need of legal services.

According to the brief article I read, these are the firms that brought the suit (in other words, those pissed off at seeing others chase): Lawlor, Winston, White & Murphy in Fort Lauderdale; Metnick, Levy & Long in Delray Beach; Balkan & Patterson in Boca Raton; and Gary E. Susser in Boynton Beach. Suit was filed in Broward Circuit Court on Jan. 4.

Those firms are alleging that the bad guys are: Bader, Stillman & Adler in Margate; Madalon Law Firm in Hollywood; and Gregory Schwartz P.A. in Hollywood are using runners as middlemen to sign up suits.

I am sure that I am not alone in wondering what the evidence will look like. My gut reaction is that the firms that brought suit will have learned of the alleged chasers from clients that they have, who had been approached by “investigators” for the chasing firms. In other words, someone gets handed a business card in a hospital and is pitched on legal services, and the patient goes elsewhere and lets the lawyers that they actually hire and trust what happened before they walked in the door.

The case should be very interesting to watch.

November 5th, 2012

Ethical Duties of “Independent” Counsel for a Hospital’s Resident

Mark Bower

While this guest post is based on a hypothetical, the ethical issues raised are the type any lawyer may encounter in a medical malpractice case that implicates a hospital resident.

The author, Mark Bower, is not only a long-time medical malpractice practitioner whom I’ve known for decades, who has guest blogged in this space before (and again here), but he has also been a member of the Ethics Committee of the NY County Lawyers Association for 20 years. In other words, this piece is right in his wheelhouse…

——————————————By Mark Bower

Ordinarily, doctors sued for medical malpractice view their insurance company as their friend and protector, but sometimes, that is not at all the case.

Let us assume a hypothetical case for purposes of illustration: A hospital, its senior private attending physician, and an employed resident physician in training, are sued for medical malpractice (birth trauma). The hospital’s resident is a young obstetrician. There is a question as to who delivered the baby. The person who (mis)handled the delivery is the “target” of the malpractice claim.

Continue the hypothetical: To protect its senior attending, the hospital and attending physician both claim that the resident delivered the baby. To defend herself, the resident claims that the attending physician did it. This factual dispute cannot be resolved by the delivery record, and the mother’s recollection of the difficult birth is not accepted as reliable.

Because the hospital wants to protect the senior attending physician, hospital’s attorneys cannot simultaneously defend the resident physician. The insurer for the hospital must retain “independent” counsel to represent the hospital’s resident.

Let’s develop our hypothetical further. Let’s assume that eventually, the case is settled by the hospital’s attorneys. Because the hospital has vicarious liability for its resident, the resident does not have to contribute to the settlement from her own funds. The defense insurance company vests its settlement authority in the hospital’s attorneys, and does not want to pay for a second attorney to attend or participate in the settlement negotiations, particularly since the hospital’s insurance coverage will pay the resident’s share in any disposition anyway. As a result, the resident’s “independent” counsel does not appear or participate in the settlement negotiations.

Only after the settlement is finalized does the resident learn that the settlement payment was attributed to her. Because she has no out-of-pocket responsibility to pay any part of the settlement amount, she was not consulted. Nonetheless, because the bad outcome is attributed to her, she has to be reported to the NYS Health Department and the National Practitioner Data Base (NPDB). Those reports may impact badly on her future career, through increased malpractice insurance premiums, decreased employability, etc.

This scenario raises the questions about the “independent” counsel’s duty to protect the resident despite the complete absence of personal contribution to a settlement, and whether there was possible ethical lapse and/or legal malpractice in this situation. We believe that in these circumstances, the “independent” counsel must appear at the settlement negotiations to defend and protect the resident, even though she has no personal financial “exposure” in the negotiations. If the resident’s attorney did not do so, and the result is that the resident gets a “black mark” with the Health Department or NPDB, the resident may have a legal malpractice claim against her own attorney.

Even where the settlement is paid by the hospital’s insurance coverage, and the resident does not contribute to the settlement payment out of her own pocket, the resident is at risk from the settlement, because she may still suffer career harm and indirect economic harm (damage to her reputation and professional standing, damage to future employability and insurability) that may follow and limit her professional advancement. Particularly because a resident doctor in training is at the beginning of her career, those harms may add up to large amounts of money over the course of a professional lifetime. As a result, the resident’s attorney has a duty to protect the client from these harms, regardless of whether she contributes to the settlement with her own funds or not.

The problem of conflicted loyalty that this case presented, is unavoidable. The insurance company typically does not want the “independent” attorney to impede or block the settlement, or try to shift the responsibility back to its other insureds, in particular in this hypothetical situation, to the more senior attending doctor. The “independent” attorney may depend on the insurer’s satisfaction with his work (and possibly the hospital’s, satisfaction as well), to get future work when the opportunity arises.¹ The “independent” counsel may earn gratitude not shared by the resident doctor.² The “independent” counsel has a personal interest in pleasing the insurer at the expense of his client. Such conflicts of interest are an inherent part of lots of defense work.

This divided loyalty is an unavoidable problem, but the resolution of it is easy, according to basic legal ethics: The attorney must act with undivided loyalty to his client (in this case, the resident in training), even if that conflicts with the wishes of the insurer that retained him, or the hospital whose good will he depends on.³ The attorney must act selflessly, including sacrificing his self-interest if necessary, to protect his client.

As a result, the courts generally condemn such acts of disloyalty to the client, and allow appropriate remedies against the attorney that allowed the others’ interests to advance, to the detriment of his own client.⁴

In our hypothetical situation, the fact that the settlement payment does not come from the resident’s pocket, seemed compelling to the “independent” attorney. That, and the carrier’s reluctance to pay multiple attorneys to attend settlement negotiations, is probably why the “independent” attorney would not attend the settlement negotiations and fight to prevent the settlement from being attributed to his client. Fighting back, to attribute the settlement to the senior attending physician, could make serious waves, and could even cause the settlement negotiations to fail. Invariably, “hospital politics” plays a back seat role in these circumstances. The fact that the resident can get harmed in other ways, despite not paying the settlement with her own funds, may get “lost in the sauce.”

The moral of this story is that if a client is assigned “independent” counsel by their employer or the employer’s insurance company, that attorney is charged with the legal and ethical duty to protect his client, not just from paying a settlement out of pocket, but from the other harms that come from having a settlement recording against the client; and the client may have a right to recover for those harms against her “independent” attorney, for failing to protect her against those harms.

1. The “independent” attorney looks to the insurer, not the client, for future work. “[T]he attorney’s relationship with the insurer is usually ongoing, supported by a financial interest in future assignments, and, like other long-term relationships, sometimes strengthened by real friendship.” See 4 Ronald Mallen & Jeffrey M. Smith, Legal Malpractice, §§ 30:3, at 150 (2010 ed.).

2. Barker, Miller et al, “Insurer Litigation Guidelines: Ethical Issues for Insurer-Selected and Independent Defense Counsel,” ABA Section of Litigation 2012 Insurance Coverage Litigation Committee CLE Seminar, March 1-3, 2012.

3. E.g., Restatement (Third) of the Law Governing Lawyers § 16 & cmt. e (perm. vol. 2000) (describing duty); Cinema 5, Ltd. v. Cinerama, Ltd., 528 F.2d 1384, 1386 (2d Cir. 1976) (attorney owes undivided loyalty to every client).; Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L.J. 255, 311-12 (1995).

4. See, e.g., American Bar Association’s Model Rules of Professional Conduct, Rules 1.8(f), 5.5(c) (ABA 2011).

August 20th, 2012

Bleating Secrets to the Press

Sal Strazzullo, as seen in the New York Times

I’ve seen this act play out before: A lawyer seeking press for himself spills damaging information about his client. Here’s the story.

Yesterday’s New York Times has a fluff piece on Salvatore Strazzullo, entitled “The Night-Life Lawyer” (as if there was a different set of laws for criminal or negligent conduct that takes place at night). The article looks like it was written by his publicist, claiming that this is a “niche” of the law.

The Times chronicles this lawyer having handled, over the past few years, a variety of second and third tier celebrities, doorman and drivers who go out to expensive clubs at night and figure out how to get in trouble. Whatever. That isn’t the part that hit home to me.

No, the part that hit home was that, in order to provide material for the story, Strazzullo spoke to the press about information received in confidence, that just so happens could also be damaging to his client. Providing confidential information is bad enough, but giving damaging information for a self-serving article seems to me to be about as low as you can go.

Ingrid Gutierrez with Drake and Chris Brown. Photos credit, RadarOnline

He talks about a fight in the tabloids two months ago between two rappers — Drake and Chris Brown — and their fight over a woman, the singer Rihanna. Sex, violence, booze, celebrities and thrown bottles. Real tabloid stuff, and this time with more well-known celebrities in the middle.

And he gets a client, a model (of course) named Ingrid Gutierrez who claims to have been hit in the face by a thrown bottle and took a few stitches.

This was the Times description:

Just two months ago, Mr. Strazzullo was sound asleep at his apartment when he received a typical plea for help from one of his regular clients, the Brooklyn model Ingrid Gutierrez. Ms. Gutierrez, 21, had dropped by W.i.P., a club in SoHo, with a half-dozen friends and found herself drinking Champagne at a table with the R&B singer Chris Brown. She was, by her own account, chatting with Mr. Brown’s bodyguard when a rapper, Drake, sent Mr. Brown a note indicating that he was having sexual relations with the singer Rihanna, a former girlfriend of Mr. Brown’s. This, predictably, precipitated friction between the men’s entourages: Voices were raised, obscenities exchanged, bottles thrown. One bottle struck Ms. Gutierrez, who was rushed to the emergency room for stitches. She wanted to sue.

Do you see that part in bold? One of his “regular clients?” Why not just send a gold-embossed invitation to the defense lawyers to ask about criminal problems she may have had?

But this part is even uglier, from the lawyer’s point of view. Look at this quote:

“I got her text at 4 a.m.,” Mr. Strazzullo recently recalled. “All it said was: ‘I just got hit over the head.’ ”

Now isn’t that nice, disclosing that, right away, she was thinking lawsuits and calling a lawyer? Why not just hand the defense another argument on a silver platter that lawsuits were the first thing on her mind? And that she couldn’t even wait for the morning?

Now it is conceivable that Strazzullo had the permission of his client to reveal this to the press, and that it therefore might not qualify as a violation of the code of professional responsibility. But. It is still a major no-no. The client, just 21 and in the modeling biz not the legal one, isn’t in a position to know how the information can be used against her. Even if the lawyer has permission to use that info, it still shouldn’t be revealed.

It is understandable, by the way, for a person injured in an assault to want to speak to a lawyer. Depending on what happened, they might be quite angry and upset and want to know what, if anything, they should do, and how they can strike back, legally, at someone that has wronged them. Anger is a huge motivator. But now she might have to explain things to a jury. She was hit by a bottle, why would she want to be explaining lawyer calls? Because one of the defenses will be — as it is in 99% of the cases– that the injured person just wants to hit the lottery regardless of what happened. Why worry if some judge will let the evidence in? (Defense: “Judge, this is admissible to prove she wasn’t hurt as bad as she says, as she had the capacity to think clearly and call a lawyer.”)

Have we seen this trick before? Two years ago I wrote about Chicago criminal defense lawyer Stuart Goldberg who spoke with always-in-trouble actress Lindsay Lohan about representation. There was no meeting of the minds on that score, and he then went bleating to the press about what was said.

Thankfully, this stuff doesn’t happen very often compared to the number of high profile cases that are out there. Most lawyers know better. But when they do spill the secrets, other lawyers should take note and expose what has happened so that others might learn from it (both lawyers and clients) that this is wholly unacceptable behavior.