December 8th, 2011

Lawyer Suspended for False Accusation of Anti-Semitism Against Cop

Usually, when you see and hear cop videos and recordings on the web it is part of the a condemnation of conduct, going back to the Rodney King beating video up to the UC Davis Occupy protest where Lt. John Pike pepper-sprayed protesters like they were weeds.

But not today. Today the video (and audio) exonerates the cop.

In Matter of Dear, a guy gets a speeding ticket for going 85 in a 55 zone. Said guy happens to be a lawyer. And said lawyer, who is also an orthodox Jew, tries to blast his way out of the ticket with this humdinger of a letter:

“Ladies and Gentlemen:
This ticket shall be dismissed immediately since –
a. there was no speeding and the officer refused to show me evidence that there was: (i.e. – “not guilty”)
b. even if there was speeding (which there wasn’t) – I was in a 65-mph zone NOT a 55 mph zone; and
c. The officer called me a “jew kike” – and this prejudice obviously was the cause for the ticket.
I am a licensed attorney in NY State and will be representing myself in this matter (contact details enclosed).
Eliot Dear
[signed] Eliot Dear Esq.
[business card attached]”

Ouch. You know where this is going, right? The cop had a video camera on the car, unbeknownst to Dear. And the cop was wired for audio.

And when confronted on the phone about this by an investigator — who was also recording the call — he didn’t ‘fess up that he had lied. The decision by the First Department today continues regarding the investigation:

The interview continued and respondent added that the trooper dismissed respondent’s proffered explanation for speeding, namely, that his pregnant wife needed a bathroom, as more baloney from “you guys,” which respondent stated referred to orthodox Jews. Respondent further recounted that the trooper displayed a demeaning attitude toward respondent and his wife. However, none of this information was supported by the video or audio recordings made during the traffic stop.

“You guys.” Nice.

There is a long explanation offered in mitigation — offered after he finally does ‘fesses up — about his psychiatric treatment for a variety of problems and family issues.

And the verdict? Suspended for six months. The Court finds that Dear made accusations, “which accusations were prejudicial to the administration of justice, engaged in conduct that adversely reflects on his fitness as an attorney, [and] asserted positions which served to harass and maliciously injure.”

Why suspension and not something a little lighter? The Court:

Here, respondent cavalierly attributed anti-Semitic slurs to an innocent person in a manner which could have had devastating consequences to that person’s career. This act alone warrants a harsh sanction, not to mention that it was done to gain an advantage in an administrative proceeding. Notwithstanding the mitigating evidence and respondent’s apparently sincere remorse, his behavior was reckless and reflects poorly on the bar. Under the circumstances, censure or admonition is simply too lenient a penalty.

File this under Attorney Ethics.

November 17th, 2011

Lawyer Solicitation: Penn State Sex Abuse Edition

When I started writing, it was going to be about the Philadelphia firm of Feldman Shepherd, and it’s creation of a web site (link coded “No Follow” so that it doesn’t get Googlejuice) devoted to soliciting Penn State sexual abuse victims, as suits against the school are likely.

I was just about to hit “publish” and question the firm’s ethics. But then I learned of California attorney Michael Bomberger. He and his firm Estey Bomberger don’t even have an office in Pennyslvania, but that hasn’t stopped the firm from hunting for victims.

Estey Bomberger has created a page of their website just for this (chock full of SEO-friendly search terms so that people can find it — thanks guys, consider it found). Their office is in San Diego, which, according to Google Maps when you punch in the addresses, is very far away.

So what is the Pennysylania hook to lure in the victims, because maybe they haven’t been subjected to enough luring from elsewhere already? It’s here with this statement: “Founding partner Mike Bomberger is licensed in Pennsylvania.”

Ummm, yeah, well, maybe. And then again, maybe not. You see, his license is “Inactive.” No, don’t take my word for it. Take the word (or the pixels, in this case) of the Disciplinary Board of Pennyslvania.

Nice, huh? Where I come from we have a word for that. Actually many words. But I’ll just use this one: Misleading. I use that one because I’m being nice.

Hey, maybe his licensing fee check got lost in the mail? Well, his office is still across the country, so that doesn’t really excuse things.

But what if he was close? That is the case of the Feldman Shepherd firm that I opened this post with.

Is their creation of a website devoted to the Sandusky sex abuse scandal ethical? That is only one of my questions. Because I already answered the other one: Is it professional? And the answer is no. I think it looks scummy, though not as scummy as Estey Bomberger.

Yes? You in the back…I see a hand raised. No, they don’t teach victim solicitation in law school. This stuff is self-taught, or taught by “the marketing people.”

Does this kind of solicitation violate ethics rules? In New York, I think it would be unethical conduct, with lawyer communications prohibited for 30 days after the incident. (I suppose someone could try to lawyer around it by claiming the incidents were more than 30 days ago, but the Jerry Sandusky arrest was recent and a contrary ruling would defeat the spirit of the rule.)

But this is a Philadelphia firm, and different rules apply. So, not needing to dwell on the intricacies of New York ethics, I called Max Kennerly, he being a Philadelphia kinda guy, to get some background on their ethics rules and local practice. In Pennyslvania, their Rules of Professional Conduct prohibit direct communication, but apparently allow lawyers to chase clients through the mail and by other means so long as it is not “in-person” or by “real-time” electronic solicitation. I presume that “real-time” would mean a text or instant message of some kind, which this stand-alone website is not. This is the rule:

Rule 7.3 Direct Contact with Prospective Clients

A lawyer shall not solicit in-person or by intermediary professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. The term “solicit” includes contact in-person, by telephone or by real-time electronic communication, but, subject to the requirements of Rule 7.1 and Rule 7.3(b), does not include written communications, which may include targeted, direct mail advertisements.

(b) A lawyer may contact, or send a written communication to, a prospective client for the purpose of obtaining professional employment unless:

(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or

(3) he communication involves coercion, duress, or harassment.

So it seems that in PA it is ethical, while elsewhere it may not be.

But is it professional? Does it bring disrespect upon the profession? My answer is yes, as I consider solicitations directed toward a particular incident to be utterly tasteless. Nor does it matter if the advertisements are well-written; it is the concept of the directed ad that I find abhorrent.

One of the first rules for looking for a lawyer is to ignore the stuff you see online. Need a lawyer? Ask friends and neighbors for recommendations. Even if they don’t know the right person, there is a good chance they will know someone who does. For example, I wouldn’t handle a will or a divorce, but I could point people in the right directions. If you are good at what you do, clients will find you. They will find you because other lawyers know you are good and will give your name out as the person to call. It’s called reputation.

October 10th, 2011

Shpoonkle – A Lousy Idea for Lawyers and Clients

There is a legal auction site called Shpoonkle. The gut instinct of many is to question the sanity of their name. But not me. I question the sanity of anyone that would use it.

According to this article at VentureBeat, this company seeks to have potential clients post information about their issues and then have lawyers bid on them. As per the article:

People who need legal representation but who don’t have time to call around for rates, or who might not be able to afford a lawyer in other circumstances, can post their needs and get bids. Attorneys then have to compete for a piece of the action. According to the company’s theory, this will lower legal fees.

I’ll get to the ethical issues in a bit, but first let’s tackle the most fundamental issue of anyone looking for an attorney: Getting the right one. And the article cites personal injury law as an example. According to CEO Robert Nitzig:

our users keep more of their winnings on contingency cases

I want to puke already. I don’t know any lawyer that meets personal injury victims that would ever refer to an award as “winnings.” Oddly enough, those that have lost a child, or a leg, or are living in constant pain, don’t see a settlement or jury verdict as “winnings.” I once took a verdict in a case for a Spanish-speaking client that was quite substantial. She was stone faced. I asked her daughter if she had translated the verdict for her mom, and the answer was yes. “Well,” I asked, “What did she say?” “My leg still hurts.”

Now to the guts of the issue: Is a client really keeping “more” of any recovery? Well, now that depends. Let’s say that, in a community where a 33% fee is the standard, that a lawyer “wins” the auction with a 25% bid and the case settles for $100,000. The client got an 8% bonus of about $8,000, right? But not if the case was worth $250,000 in the hands of someone with experience and a proper skill-set. The client, then, would be a huge loser.

You see, as per the article, this is a great site for new attorneys since 13,000 out of the 44,000 graduating law grads don’t have jobs. So how does the rookie lawyer have the knowledge to work the case up, appreciate the significance of injuries s/he has never seen before, know their value, know how to address the defenses and cross-examine the hired expert guns, and handicap the odds of prevailing? And even more importantly, does the newbie lawyer have the depth of experience and the cojones to say “no” when the adjuster calls with the 100K offer, when the case is worth more and that young lawyer is struggling to pay the rent?

There is an old saying that “you get what you pay for” and that is often true in the professions. Not all doctors are created equal, nor architects, nor lawyers. People pay for experience, because that experience is what benefits them in the long run.

Now let us go the dynamics of the auction site itself. According to the article:

People who need legal representation but who don’t have time to call around for rates, or who might not be able to afford a lawyer in other circumstances, can post their needs and get bids.

This raises two distinct ethical issues: First, clients may be seen to have waived their attorney-client privilege by making the information available in such a fashion. They haven’t contacted one lawyer, they have contacted every lawyer in the database that can access the information and who have not agreed to represent the potential client. What if this was a slip and fall in a restaurant, and it just so happens that the restaurant lawyer can access the information also? Now what? Now the information that the client distributed to, potentially, hundreds or thousands of mystery lawyers, may be anything other than confidential.

How stupid does someone have to be to distribute their confidential information about a legal issue to lord-knows-how-many mystery people?

How do you pick the right lawyer? In one of my very first first posts when I created this blog almost 5 years ago, I wrote on just that subject, and addressed this fundamental question: There are so many attorneys and legal websites, how do I select a law firm? While it may not be the most inspirational writing, I stand by the fundamentals of how to find a lawyer, and a lowest-bidder auction certainly isn’t one of them

And as to the Shpoonkle name, I won’t criticize it’s Yiddish sound. After all, many colorful Yiddish words start with “sh” (or “sch”). Some that spring to mind are shlemiel, shemendrick, shnook and shmoe, all of of which someone would have to be to get suckered by this auction shtick to use this shlock service. Which may result in the client getting shtupped.

Elsewhere:

Shpoonkle By Any Other Name (Simple Justice)

Any lawyer who signs up for this service should be immediately disbarred, then tarred and feathered, then publicly humiliated. It doesn’t matter how awful a lawyer you are, how pathetic your business, how grossly incapable you may be in getting any client to retain you. Those are all good reasons to apply for the assistant manager’s position at Dairy Queen. This is worse.

The Shpoonkle-ization of a Legal Profession w/o Doc Review Jobs (Solo Practice University)

Here you have a race to the bottom as lawyers bid against one another to pay the lowest fee to anonymous clients with legal problems.

Another Attempt at a Reverse Auction for Legal Services (Robert Ambrogi’s LawSites)

With its launch today, will Shpoonkle, the latest reverse-auction site for legal services, find itself suffering the same fate as its forerunners? Or is the time finally right for such a site?

April 5th, 2011

Lawyers and Advertising (The New Frontier)

I broach the subject of lawyer advertising every so often, because there seems to be so many different things to write on the subject. It covers constitutional law, ethics and plain old good (bad) taste.

Ethics and constitutional issues butted heads in recent years over New York’s new attorney advertising rules, which went up to the Second Circuit in Alexander v. Cahill, about which I’ve written often as it tracked its way through the judicial system.

Ethics also comes into play with deception, as evidenced by one Joseph Rakofsky, a New York lawyer with scant experience, but whose website sung his praises in oh so many ways. Then he got a real client. Defending a murder case. Which of course, he was utterly incompetent to do and after being exposed in the Washington Post, the story is now buzzing around the blogosphere (Gamso; Bennett; Elefant; Greenfield; Tannebaum; Mayer; Koehler, Above the Law).

And in the plain old bad taste department, I’ve written of lawyer advertising on a funeral home website and, in what I previously thought was the ultimate captive audience spot, over a urinal. All of this is part of a never-ending race to the bottom, as Scott Greenfield describes it.

Which brings me today to The Buffalo News, and an op-ed by Jeffrey Freedman, and the next round of bad-taste advertising, and the fact that there was an even more captive audience that I hadn’t even thought of, but others, apparently have:

…Captive ads, in case you missed it, is the new Metrodata Services advertising program that allows defense attorneys, bail bondsmen and anyone else who would like to advertise to the captive audience of the recently arrested on big screen TVs in the Holding Center….

So if you thought standing at a urinal and seeing an ad in front of your nose made you a captive audience, then this brings us to the next level: An audience that is captive in the most literal sense of the word, in the local lock-up.

Freedman wonders where this will ultimately lead:

Erie County Medical Center is a potential gold mine of space. Picture the possibilities for hospital gowns. Give patients a choice: Viagra or Cialis today, Mr. Smith?

And just imagine elevators and waiting rooms papered with the faces of compassionate, personal injury attorneys. “We don’t charge a fee unless we win your case.”

I thought that when lawyers dug down deep to advertise at a funeral home website, that this was as low as they could go. But perhaps there are new avenues to be explored in bad taste.

March 15th, 2011

North Carolina to Allow Non-Lawyers to Buy Interest in Firms? (Lousy Idea)

There is a bill pending in North Carolina that would allow non-lawyers to buy interests in law firms, up to 49% of the total. This violates the age old prohibition on sharing legal fees with non-lawyers, and is one hell of a lousy idea. First, read the short piece by Dan Fisher @ Forbes on the bill, then come back.

Welcome back. Now here is the problem from my perch in the personal injury field. If non-lawyers profit from the legal business then there is an incentive for them to “help” their investment by finding cases to refer to the firm. In other words, it is an invitation for private “investigators” to troll for clients. We have legalized ambulance chasing, bringing more disrespect to the profession and our justice system since the non-lawyers aren’t bound by the ethics rules. And the lawyers who get the cases may simply choose to turn a blind eye as to how the cases are coming to the firm, or worse, give equity in the firm to the investigators without asking the critical questions of how the clients were obtained.

When the disciplinary committee comes a callin’, they will profess to be shocked, just shocked, at how their firms’ names were given to potential clients.

Let me show you how this works in the real world. This past weekend there was a horrific bus crash in the Bronx that killed 15 people. And attorneys are prohibited under New York’s 30-day anti-solicitation rules from approaching any of the injured victims or next of kin.

So how can lawyers work around this? By using marketing firms to launder their ethics.

Other firms, such as this one and this one, run “blog” posts about the accident that merely regurgitate the facts from a news article and then follow up with a call to action (If you or someone you know…). I discussed this problem back in 2007 after the new anti-solicitiaton rules went into effect (see: Attorney Solicitation 2.0: Is it ethical?)

So what will happen if non-lawyers have a financial interest in the firm? You can bet your last dollar the situation will worsen.

Larry Ribstein asks why non-lawyers shouldn’t be allowed to own shares of firms, under the theory that the restrictions limit the market for legal skills in the business world. But I don’t think he has given enough thought on how that plays out among other fields of the law.

Elsewhere:

Legal Services Act comes to US (Legal Transformation: The Changing Legal Profession)

Are ABSs coming to America? They may be in North Carolina (Legal Futures)

Lay Ownership Share In Law Firms Proposed in North Carolina (Law Forward)