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 14th, 2011

IMDb Attacks Anonymity of Actress that Sued For Publishing Her Age

Last month a story rocketed around the web of an actress suing the Internet Movie Database (owned by Amazon.com), claiming it used credit card information to find her birth date and publish it on the IMDb site. Most stories left the invasion of privacy issue alone and focused on an actress suing to keep her age confidential – she says that ageism in Hollywood is a big problem for actresses as they approach 40.

I used my site, however, to talk about whether or not a court would permit her to proceed anonymously, a subject then picked up by The Hollywood Reporter.

And now The Hollywood Reporter follows up with a story saying that IMDb is doing exactly as I predicted, attacking her anonymity. I bet there is no doubt among the strategists that if she can be forced to reveal her identity, the suit will be dropped and IMDb will never have to confront the issue of privacy issues and credit cards.

According to THR, IMDb has now filed a nasty motion to dismiss, believing that this actress is the same as another that made a similar complaint:

she first tried to get the service to post a false birthdate so she could fool potential Hollywood employers into thinking she was younger than she actually is. Now a judge is being asked to dismiss the lawsuit so as to not perpetuate a fraud on the public.

Oooooh. Fight back against the actress with a charge of trying to defraud the public. Correct me if I’m wrong, but isn’t that what Hollywood and actors do? Does anyone really believe a giant monkey will climb the Empire State Building? That there’s a giant intergalactic war going on? That Joanie really loves Chachi?

This is the way IMDb approaches the issue in the Court:

“Truth and justice are philosophical pillars of this Court. The perpetuation of fraud, even for an actor’s career, is inconsistent with these principals. Plaintiff’s attempt to manipulate the federal court system so she can censor iMDb’s display of her birth date and pretend to the world that she is not 40 years old is selfish, contrary to the public interest and a frivolous abuse of this Court’s resources.”

Of course, the actress wasn’t trying to perpetuate a fraud on the court, but trying to stop an invasion of privacy regarding her credit card information. So that is an interesting shift of the real issue.

But not everything is serious in the filing, as THR reports:

The company also claims to be taking the moral high ground in protecting entertainment consumers from an actress who wants to “more easily deceive the public and prospective employers about her age and potentially be considered for more roles.”

Of course, I think that IMDb is being funny when it talks about the public being deceived by an actress, whose very training is doing just that: pretending to be someone else. It’s sort of what makes Hollywood go round and round.

One particularly odd thing about the synopsis of the filing: IMDb is claiming an attempted fraud, yet they claim not to know who the actress actually is. They only think it is someone else who made a similar complaint.

Anyway, when the fighting is all done, I think the actress will lose her bid to be anonymous, but it will have nothing to do with trying to perpetuate frauds. It will be because this type of case doesn’t meet the high bar set for seeking anonymity that I originally discussed.

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)

November 11th, 2011

Rick Perry, Brain Farts, and Trial Lawyers

There was something deeply troubling about the reaction to Texas Gov. Rick Perry’s brain fart the other night during the Republican presidential debate. He said he wanted to whack three different federal agencies — Education, Commerce and Energy, but couldn’t remember Energy in the glare of the lights and pressure of the moment. He froze, and people have been yapping about the freeze ever since.

In chattering about the freeze, of course, commentators mostly missed the opportunity to talk about the substance of what he was proposing. The superficial trumped the substance. Yes, I know this happens all the time in politics, as it is easy for everyone to talk about a brain freeze while it might take some real thinking to discuss substance.

I felt bad for Perry, even though he isn’t my cup of tea. Anyone who talks in public — and trial lawyers do this so that is where I am going with this post — knows that this can happen. That’s why we work from notes.

But working from notes necessitates striking a balance. Because you never want to read to a jury or an appellate bench, unless you have to exactly quote something. If you put your nose in your notes, you lose the attention of the listener. So more notes means less likely to forget something, but also the danger of losing your audience. And vice versa. This is Trial Practice 101.

So we try to strike that happy balance. For me, when I open to a jury or make an appellate argument I try hard to use a rough outline that does not exceed one page, 14 point type. I use it to glance at. Summations are similar, except that I will read a few trial transcript bits to the extent I think critical. And I always apologize to the jury for reading.

In cross-examination, of course, you have to wrestle not only with what you want to bring out to the jury, but with what the witness is trying to do. Notes become even harder to use in that situation. And it is easy to lose a train of thought and suffer the dreaded brain fart when dealing with the subject matter, the witness, the form of and the question. You need to focus on the big picture and the nitty gritty at the same time, as well as the next line of questioning that you want to lead the witness to. Yeah, that takes practice.

Which brings me back to Perry. When you walk on a high wire those kinds of flubs can happen. But I wouldn’t want a juror to judge my case if it happened to me, and I don’t think folks should judge Perry based on his. Critique the substance, not the style.

Of course, if the points are really, really important, you might want to follow the Sarah Palin method, and write them down on your hand.

I think I’ll file this one under Trial Practice.

October 31st, 2011

Dracula Heads to Court in Queens, New York

Dracula appeared in court in Queens this morning.

Spotted today in Civil Court, Queens County: Dracula. Playing nice before taking a bite out of his victim.

Reached by phone today — and who knew Dracula did interviews? – he told me he did this once 5 or 6 years ago, and it was a big hit, so he has made it a tradition this time of year. He’s argued motions like this, and tells me he once also appeared for a bench trial in the garb. Neither the judge nor defense counsel protested.

Dracula’s legal work — and I know you were wondering what he did during his waking hours, and the answer seems to be plying dark courtroom hallways out of the sunlight — is that of No-Fault collections for medical providers. This little niche of the law is necessary because No-Fault insurers have this nasty tendancy to cut off benefits after brief exams, that many call shams, of the injured. Dracula, in other words, and contrary to the expectations of the world, is a good guy, fighting against insurance companies. Who’d a thunk it?

Perhaps when Dracula returns from court he can assist me in getting rid of the zombies that came to take over this blog this morning.

Dracula is Dave O’Conner and the frightened damsel in distress is local attorney Meryem Toksoy.

Photo is courtesy of my courthouse spy, Samson Meyer Freundlich.