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.


November 11th, 2011

Priests, Pedophiles and Penn State

Aug. 6, 1999 AP file photo, Penn State head football coach Joe Paterno, right, poses with his defensive coordinator, Jerry Sandusky

Out of Florida comes a $100M verdict against a priest for sexual abuse of a child. Of that, $90M is punitive damages. Will that money ever be collected? No. Does it matter?

It certainly matters if you are Penn State, reeling from news this week that Jerry Sandusky, one of its football coaches, was arrested on multiple counts of sexual assaults on children. There seems to be little point recounting the burgeoning scandal and its awful claims here, as so many others are already doing, and I try not to write “me too” kinds of posts. But you would have to be living under a rock not to know that legendary head coach Joe Paterno was fired in the immediate aftermath, as was the school’s president, Graham Spanier.

But one day you can bet some of these victims — and no one knows how many will claim to be — will come forward and sue the school for not doing more to bar Sandusky from the school grounds and alert the police after finding out about the allegations.

The issues will be, as they so often are, what did school officials know about the assaults and when did they know it? And, what did they do about it and when did they do it?

Even if Sandusky were to prevail on the criminal charges — a concept few bother to talk about as everyone just assumes he is guilty — it seems unlikely that those saying they were victimized would just fade away. and it seems that one day a jury, or many juries, will be asked to answer questions similar to this:

Was Penn State negligent in failing to report Jerry Sandusky to the police?

Was that negligence a substantial cause of injury to this victim?

Did Penn State act with a reckless disregard for the health, safety and well-being of those on campus by failing to report Sandusky to the police?

So that Florida verdict against a priest is important, as it is one barometer of how society feels about these types of issues. And that means bad, bad news for Penn State, for many years to come.

See also, with timeline and citations to Pennsylvania law:  Can Sandusky’s Sexual Abuse Victims Sue Penn State? (Max Kennerly @ Litigation and Trial)