February 11th, 2011

Dominic Barbara, High Profile NY Attorney, Suspended for 18 months

Part of this short story is about a lawyer named Dominic Barbara, who previously represented Howard Stern (and is a regular side-kick, call-in guest on his show). He also represented Joey Buttafuco, Jessica Hahn, and Michael Lohan, each of whom had more than their allotted 15 minutes of fame. New York Magazine once called him the “biggest, brassiest lawyer on Long Island.” And last year he was retained for a headline making crash on the Taconic Parkway that killed eight people (video).

But the more important part, to me, is the fact that what you see on a lawyer’s website, or in the newspapers, isn’t always what you get.

First, as to Barbara. He was suspended this week after “an avalanche of Grievance Committee sanctions” (nine Letters of Caution, nine Admonitions, and two Advisements). That’s a lot of baggage, and as a consequence of the latest round he was handed an 18-month suspension. Among the charges, and these seem to be the straws that broke the camel’s back, are that he failed to issue itemized bills as required, failed to supervise the lawyers in his office, failed to timely refund a portion of a fee that had not been earned after the client fired him, and engaged in conduct that adversely reflects on his fitness as a lawyer by failing to adequately communicate with that client (or her new counsel).

But here’s the thing, despite this “avalanche” of sanctions, he has this to say about his firm on his website:

For more than 35 years, The Barbara Law Firm has performed at the highest level of quality legal representation in the fields of Family, Matrimonial, Criminal, and Civil Law.

The highest levels? I think not. Not with all those sanctions. There is more puffery, of course, as he tries to parlay the celebrity clients into more business:

Dominic A. Barbara has been leading this firm for more than 30 years, providing personal, assertive, successful legal representation to clients from all walks of life. The housewife, teacher and business owner receive the same care and consideration as the high-profile celebrities who turn to The Barbara Law Firm. Each one is looking for the same thing – a team of brilliant legal minds focusing on his or her individual case.

So what you see on a website isn’t always what you get when it comes to the law. Anybody can write puffery. And just because someone has high profile clients doesn’t mean that they are actually good lawyers. (I never did like that whole “celebrity lawyer” thing.) ” I once tried a case with a guy that had many high profile clients. In the well of the courtroom he was awful. And when I say awful I mean law students could do a better job. I would see him on the news after our trial and the first in my mind was this: His client is gonna hang.

The best way to find a lawyer isn’t by checking out the puffery on a website. It’s by asking around and making sure they handle the problem that you have, perhaps by starting with friends and neighbors and other lawyers who will hopefully be able to direct you to someone who knows what they are doing. In fact, this was the subject of the fourth post I ever did on this blog, more than 1,000 posts ago, when I only had six readers. They were all Bulgarian spammers.

So if you’re hunting for a lawyer, ignore that guy on the news. And certainly don’t be impressed with his website. For as the old New Yorker cartoon goes, on the internet, nobody knows you’re a dog.

Avvo screenshot at about noon on 2/11/11

Addendum: I think it’s worth noting that this “avalanche” of Grievance Committee sanctions didn’t show up on Avvo‘s lawyer rating service, a service of which I’ve previously been critical. (This suspension hasn’t either, but I cut them slack for that because the opinion was just released yesterday.) But the point is that many disciplinary actions are hidden from public view. In other words, Avvo probably couldn’t have found the problems even if they looked. And that type of incomplete information can be rather misleading to the consumer, notwithstanding all the caveats that Avvo might provide. A copy of Barbara’s listing, showing “No professional misconduct found” is at right.

Elsewhere:

Learning Tricks from an Old Dog (Simple Justice):

Is this your hero? Is this your savior? Is this the lawyer who you want standing next to you when your life is on the line? Or is this the guy who will charge you a whole lotta money because he’s a big time “high profile” lawyer, and when you decide that he’s not the guy you want next to you despite all the puffery on his website, he won’t give you your money back? (more)

Loud Lawyer Dominic Barbara suspended for 18 months (Courtroom Strategy):

I have had clients who have come to me after a foray into his firm’s office that when they complained about the non-stop pouring of money into legal fees, that he would offer to stay on the case if he allowed them to hold a press conference about the case. (more)

Update: Dominic Barbara Retires In Wake of Suspension

(Note: Subsequent to this post, news organizations ran stories on the suspension)

January 4th, 2011

NY Lawyer Solicits Snowbound Subway Victims (Does He Violate Ethics Rules?) – Updated

During the December 26-27 blizzard hundreds of passengers were stranded for up to eight hours on an elevated section of subway near Kennedy Airport. And now a lawyer is out there soliciting victims for a suit against the local transit authority that runs the subways.

According to this Daily News article, lawyer Aymen Aboushi is about to sign up seven clients from the stranded A train and hopes to sign up hundreds more. He even created a website just for this purpose, stuckonthesubway.com.

According to the pitch on the website:

This web site has been set up to help people who were stuck on the A train during the December 2010 blizzard hold the [Metropolitan Transit Authority] accountable for leaving them stranded. The train was disabled and passengers were not allowed to get off the train. Passengers were left without heat, water, or food for over 8 hours, in 15 degree weather, even though the train was above ground and the MTA had access to it. Many people who were trapped on the subway have contacted us. Please contact us to see if you can join the legal action we will pursue against the MTA.

There seems to be, according to my eye, just one little problem with this pitch. It looks like it violates New York’s 30-day anti-solicitation rule. That would make it an ethical violation if I am right.

This is the 30-day rule, from the Rules of Professional Conduct (Rule 4.5)

No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated 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 does a website pitch count as solicitation? Well, it sure seems to be “targeted” and “directed” to a specific group. According to 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.

Do all websites have this problem? Apparently not. But those that were created for just this purpose? The rule-makers were thinking ahead here in Rule 7.3(c)(5). I’ve added the italics:

The provisions of this paragraph shall not apply to:

(i) a solicitation directed or disseminated to a close friend, relative, or former or exist- ing client;

(ii) a website maintained by the lawyer or law firm, unless the web site is designed for and directed to or targeted at a prospective client affected by an identifiable actual event or occurrence or by an identifiable prospective defendant;

So let me sum this up in legalese; The solicitation looks like a big, fat, no-no. (I’ve written about this before with other incidents, including a Staten Island Ferry crash, the Hudson River splash landing, and a Buffalo plane crash.)

A closing note. If you read the comments at the Daily News article, you will see near universal condemnation of Aboushi. But all lawyers, and their clients, will suffer when we walk into the courthouse to pick a jury. It only takes a few bad apples to tarnish a profession. Aboushi seems to be doing his best to be one of them.

——

Updated 1/5/10: The website stuckonthesubway.com is now down, with a redirect to the Yahoo home page. My guess is that the lawyer realized he stepped over an ethical boundary and yanked the site.

December 14th, 2010

Supreme Court Kills New York’s “New” Attorney Advertising Rules

Yesterday, the United States Supreme Court put the final nail in the coffin of New York’s “new” attorney disciplinary rules regarding advertising when it refused to review a Second Circuit decision that struck most of the rules. I put “new” in quotes because they actually date to February 1, 2007, just months after I opened this little blog.

And I’ve been following the issue ever since. See January, 5, 2007; New Attorney Advertising Rules (Is This Blog an Advertisement?)

Most of the rules were first struck down by the U.S. District Court in July 2007 when challenged by Public Citizen on behalf of the upstate firm of Alexander & Catalano. And the Second Circuit upheld those determinations in April of this year. (Sonia Sotomayor was on the panel that heard the case, but had gone to the Supreme Court by the time the decision came down.)

Those broad-based rules tried to stop a variety of advertising techniques, but did so in a fashion that ran headlong into the First Amendment. The rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.

As I pointed out in one of my first posts, simply putting a picture of yourself on a lawfirm website could be construed as violating the prohibition against “characteristics clearly unrelated to legal competence.” The picture will tell the potential client your age, your race and your sex, but what will it tell them about legal competence? Nada. Ergo, under the new rules the photo could be a violation.

Obviously, this wasn’t why the rules were crafted. They came in response to the embarrassing aftermath of the October 2003 Staten Island Ferry disaster that killed 11, and the onslaught of ads in the Staten Island Advance the next day. Those ads were placed while rescue efforts were still ongoing at the ferry that day. It was not one of the better moments of the personal injury bar. And that incident brought about New York’s 30 day anti-solicitation rule, part of the new set of rules but one which was not affected by this ruling.

But the new rules went after problems that didn’t just have to do with 30 day time limits.

Senior Judge Frederick J. Scullin, who wrote the District Court opinion striking down almost all the other rules, summed up the problem this way in a buried footnote on page 29 of his decision:

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 he legal profession has been greatly diminished.

But in re-crafting rules in an attempt to solve this problem, the crafters went way too far. So far, in fact, that the only way to defend them was to assert that attorneys couldn’t use humor.

For it was humor that formed part of the basis of the state’s response to the Alexander & Catalano lawsuit. AS described the by state in one of its filings, the firm advertised that it:

retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.

And the argument by the state against this? That it wasn’t truthful. See: New York Responds to Lawsuit Challenging New Attorney Advertising Rules — By Banning Humor

When I read the state’s brief, that I discussed at some length in that post, I knew the rules were toast.

While the ads may have been tasteless and embarrassing to the profession, no person with a functioning brain could have believed that the firm had actually been retained by aliens or done any of the other eye-catching things in those commercials.

And so the First Amendment ruled the day, as the rules over reached to ban more than just dishonesty.

Now I sure as hell wouldn’t want to pick a jury in any courtroom if my firm was busy running such moronic ads, but taste is not something that can be regulated.

———————-

See also on the Supreme Court’s action:

SCOTUS Gives Nod to 2nd Circuit OK of ‘Heavy Hitters’ Law Firm Slogan & Descriptive Trade Names (ABA Journal)

US Supreme Court to New York Lawyers: You Are Awesome (Tannebaum @ My Law License)

Supreme Court Denies Certiorari in Lawyer Advertising Case (Robson @ Constitutional Law Prof Blog)

Good News for ‘Heavy Hitters’: High Court Sidesteps Lawyer Advertising Dispute (Koppel @ WSJ Law Blog)

November 10th, 2010

FuneralHomes.Com Digs Down Deep For Personal Injury Lawyers

When the email arrived, my first thought was: Can this be for real?

The pitch that came from FuneralHomes.com (coded “NoFollow“) was this: They are a directory of funeral homes. And they want to inquire about my “interest in a new marketing channel” that they have “for firms specializing in Medical Malpractice, Wrongful Death & Nursing Home Abuse or Neglect.”

It made me shudder. And made me think of the washed up lawyer played by Paul Newman in The Verdict, going to funeral homes to pass around his card, pretending to have known the deceased as he chased cases. But instead of standing in their parlors handing out cards, this company wants lawyers to hang advertising on their site where the bereaved might go in time of need.

So, not really believing this email was real, as I thought it too sickening to be true, I shot back a reply to its sender, Tom Keesee: Is this for real?

And Keesee called back quickly, perhaps excited about having a having a potential fish on the line. Yes, he said, it was for real.

But before he could launch too deeply into his sales spiel, I asked him about the ethics of it all. Lawyers don’t pay him for leads, he said, so there was no problem. Also, since they aren’t attorneys, they don’t have to comply with attorney ethics rules regarding solicitation.

I pointed out, of course, that the lawyers they wanted to do business with still had to comply with ethics rules. And wasn’t this solicitation? He told me, a couple of times, that his “legal department” had looked into it and it was fine.

But rather than dwell on whether lawyers advertising on a funeral home website is a permissible form of solicitation or not, I’m going to move right to the “smell test” as in, does this smell right to you?

This marketing madness happens to come at the same time that a debate rages elsewhere in the legal blogosphere on this subject, because the American Bar Association recently announced it was going to look further into regulating online activity for lawyers. Larry Bodine, fired the first salvo, from the perspective of lawyer-marketing, trying to stop the ABA from working on the project. Scott Greenfield worries that his opportunity to blog could be impaired because of the liars and scoundrels out there, claiming to be something that they are not. Brian Tannebaum points out that it was the marketers that brought this on themselves. There is more on this from Antonin Pribetic, and and a summary of the issues presented to the ABA by Carolyn Elefant. There seem to be many ways in which ethics can be laundered.

So here’s what I think: The ABA position doesn’t really matter. And you know why? Because when lawyers see conduct that they deem to be offensive and detrimental to the legal field — and I think that lawyers advertising on funeral home websites fits that definition — then some lawyer-bloggers will write about the subject. And if those bloggers are sufficiently offended by the conduct, then they might publicize the names of those that are chasing cases in such a manner. You can see examples of such e-shaming here by Mark Bennett, or another by Kevin O’Keefe here.

The web moves very fast when it comes to correcting the behavior of those that act offensively, a hell of a lot faster than the ABA. Witness this week, for example, the conduct of Judith Griggs who edits a small magazine called Cooks Source. She stole the work of others, did it without attribution, and tried to justify the plagiarism by claiming that the web is considered “public domain” that she can use. Colin Samuels at Infamy or Praise did a long piece on the subject as part of his Round Tuit round-ups, but here’s the thing: If you Google “Cooks Source” now you can see how she and the company has been savagely beaten up by the web, with page after page of venom. Their Google reputation is shot.

There are some who used to believe that any publicity is good publicity, so long as the name is spelled right. In an earlier era, a person might remember seeing a lawyer’s name in a newspaper, though not necessarily the details. But now the details are easy to find. Judith Griggs will likely see those comments about her for decades to come. The old mantra about any publicity has been destroyed by the web.

So what kind of publicity is likely to come to a law firm that advertises on FuneralHomes.com? Those attorneys that think this might be a good way to find cases ought to consider the potential backlash from those that are offended by the concept and wish to write about the subject.

The bar for attorney advertising has been lowered to new depths. It now appears to rest six feet under.

Updated: I was reminded of an old post of my by a friend, where a law firm decided it would be savvy to advertise over a urinal.

July 15th, 2010

Confidential Means Confidential, Even In Lindsay Lohan Case (Stuart Goldberg, Esq. — Fail) – Updated

I really don’t get it sometimes. A client goes to a lawyer with a legal problem. The lawyer declines the case. And then the lawyer yaps to the press?!? Are you kidding me?

It comes up today in the ongoing train-wreck of actress Lindsay Lohan, who apparently has had a spot of legal trouble with getting boozed up and driving, and the consequences that flowed from it.

But a headline at the ABAJournal on this actress seeking pro bono counsel caught my eye. Is she claiming poverty that she needs free legal help? No. She just paid two others lawyers already so she thinks her third one should be a freebie. Go figure.

Anyway, this is what caught my attention and rankled me, this bit at the end of the article:

Meanwhile, another counsel candidate who says he refused the representation has already dished to People magazine.

His would-be client is “a fragile lost child” who “just doesn’t get it” concerning the seriousness of the case she is involved in, says Stuart Goldberg, a criminal defense attorney based in Chicago. When he met with the actress and two relatives, “they didn’t seem to understand the urgency and gravity of the situation.”

Why the hell is this Stuart Goldberg, apparently a Chicago criminal defense lawyer, talking about what he heard or saw in the confidence of his practice? And why would any future client ever trust him to keep a secret?

The People article has him giving a great deal of information about his supposed-confidential meeting with Lohan at her home.

More details from the visit at People:

At one point in their meeting, Goldberg, worried that Lohan “was in a dangerous state,” asked if she might hurt herself.

“She started sobbing quietly. She was genuinely in pain,” says Goldberg.

And though he advised Lohan to move out of Los Angeles, which he described as a “toxic environment for her,” the actress didn’t seem open to the idea.

“She was like Teflon to that comment,” he says. “It just slid right off her. She seemed to have some inner deep sadness that that was her fate.”

That is no way for a lawyer to act, unless Lohan agreed to let him yap to the press, which seems rather unlikely.

File this one under Attorney Ethics.

Update, 7/16/10: While I have no desire to follow the follies of stars and starlets on any continuing basis (which is one reason, I suppose, I initially mis-spelled Lohan’s first name as “Lindsey”), I do wish to add another version of why this match was not made to measure. Goldberg claimed, apparently, that he turned down Lohan, as noted above. But it may be the other way around. According to this report:

Lindsay Lohan says that she turned Goldberg down because she didn’t like his style. TMZ gives the example of his vanity license plates which say “Snake Charmer”.

Snake Charmer. Nice. I wonder if jurors ever see him get into that car.