February 13th, 2009

Buffalo Plane Crash WILL Test New York’s New Anti-Solicitation Rules (Updated x3)


When I wrote three weeks ago about the possibility of the Hudson River splash landing testing New York’s 30-day anti-solicitation rules for attorneys, I did it with a question mark and with one eye firmly on the fact that it ended very well for the people on board the plane. It even ended well for the bar, as I found only one firm that appeared to violate the ethics rule. It also led me to explore, while the Second Circuit considered the issues of New York’s new rules, the myriad ways that ethics laundering can take place with lawyers hiring attorney search services to solicit, or running “articles” on their web sites about the crash.

I didn’t expect to write again so soon on the subject, but today’s horror in Buffalo with Colgan Air / Continental Flight 3407 crashing and killing 50 people will bring the subject of attorney ethics and the 30-day anti-solicitation rule right back to the forefront. You can read much more about the rules at the prior links, but this is the starting point from New York’s Code of Professional Responsibility:

DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death

(a) In the event of an 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, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident 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.

My analysis below — which will be updated in the future to provide for reactions from the bar to the crash — is limited to use of Google searches. First we’ll look at sponsored ads, and then natural search results.

Sponsored ads:

  • At 6:51 this morning I Googled “Buffalo Plane Crash” and came up with zero sponsored ads:/BuffaloPlaneCrash-2%[email protected]
  • At 6:55 I added “attorney” to the search phrase and came up with a few aviation firms that seem to have stock ads, but nothing obviously geared toward Buffalo:/BuffaloPlaneCrashAttorney-2%[email protected]
  • At 10:42, you now see some sponsored results for “Buffalo Plane Crash.” These don’t reference Buffalo in the ad, but that doesn’t mean it wasn’t a keyword that a marketer added to the search Google Adwords terms that would return this response. To me, a very subtle, but significant means of breaching the rules if that is how it was done. /BuffaloPlaneCrash-2%[email protected]

The chance of this changing as attorneys try to solicit via the web is high, but at least the starting point has been frozen in time.

Update #1 (2/13 @ 12:32) – The first ad directly soliciting victims has now appeared. It is by the same attorney that ran an ad after the Hudson River crash. Here is the pdf:/BuffaloPlaneCrash-11%3A13-12-32pm.pdf And here is the ad:

Continental Crash Victim?
Helping Victims of Flight 3407
Contact Our Aviation Attorneys
www.jcReiterLaw.com
New York


Update #2 (4:44): I received a call from Reiter, and the ad was taken down.

Update #3 (10:07 pm): Buffalo law blogger Roy Mura (Coverage Counsel) found another ad that directly solicits for this accident, from Philadelphia attorney Joseph Messa. (Welcome to New York, Joe. Now please leave.) You can find the link in the comments to this post.

At the same comment by Mura we learn that the Buffalo firm of O’Brien Boyd now surfaces with the search term “Buffalo plane crash.” At their web site, the text now reads:

We have already received several phone calls about what happens when someone dies in a plane crash. As a public service, we wanted to provide some information to the general public. In any negligence case, the legal system asks two basic questions: …

Also in the search findings for “Buffalo Plane Crash” are these firms, among others, whose names did not appear at 6:51 this morning when I used this search phrase, leading me to believe that the Google Adwords accounts were edited to add words specifically for this accident while not using the words in the ad itself. (Or this is a Google issue where sometimes stuff shows up and sometimes not.) Here is the pdf:/BuffaloPlaneCrash2%[email protected]

  • Rosenberg, Minc, Falkoff & Wolff. The firm appears under NY Plane Crash Lawyers (nycaccident.com) and claims to be the oldest PI firm in NYC;
  • Masry & Vititoe, a California firm made famous by Erin Brokovich; and
  • Injury Helpline Attorney, an attorney search service, which shows what happens to law firms when they outsource their marketing to others.

I discussed this technique of using certain keywords in the Google Adwords system to make the ad pop up, while hiding the actual words from public view, in this post: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified. To actually prove ethics violations here would probably require subpoenas of Google’s records for the accounts due to variations on how Google puts up its sponsored results.

Natural Results:
Law firms might come up in the natural results if they wrote about the crash on their web site. Some have a “blog,” and I use that term loosely in this context, that does nothing more than run stories on local accidents. I discussed in December 2007 how such a blog can be used for attorney solicitation. As you will see this presents First Amendment issues. Writing about an event is one thing, but what happens when you tie it in with a solicitation? A story is run followed by “If you or a loved one has been killed or injured…” There are a million shades of gray as to how that is done.

Update #1 – And the first website I have found that hits page one of the natural results (search term: Buffalo Plane crash attorney) is Parker Waichman. Here is the pdf of the search: /BuffaloPlaneCrashAttorney2%[email protected]

When you follow the link you find a story of the accident right next to a “Free Case Review” for airline accidents. Note that “Buffalo Plane Crash Continental Flight 3407” is in the title bar for optimum search engine results. And that is a great example of how the First Amendment and New York’s anti-solicitation rules clash.

It’s important to note, by the way, that these rules apply to out-of-state attorneys who may try to solicit in New York (only to refer, the case, no doubt, to local counsel). That rule specifically states:

Extra-Territorial Application of Solicitation Rules

EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.

The rule also applies to “agents” of the firms, which to me means any of of the dozens of attorney search services that exist and who might break the rules while doing their marketing. The attorney who hired the firm would not doubt be “shocked” to find such conduct taking place.

I hate writing about this stuff in the midst of such a tragedy. But the brutal reality is that, after the Staten Island Ferry crashed in 2003 killing 11 people, the local paper was flooded with ads coming in that afternoon for the next day’s paper. With the new rules in place, it seems important to take a snapshot of the situation before any ads are run, to see how it contrasts with what will likely happen.

=====================
2/16/09 Update: Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?)

2/17/09 Update: DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients

Links to this post:

blawg review #200
could this be the end of the line? when we started blawg review with the question, “do you blawg?” in 2005, who would have thought this traveling carnival of law blogs would still be alive 200 weeks later? …

posted by Editor @ February 23, 2009 12:00 AM

buffalo plane crash
the client-chasing has begun on continental flight 3407, ably chronicled by eric turkewitz. tags: airlines, chasing clients. related posts. minutes after the flight 1549 crash…. (6); january 13 roundup (6); youtube lawyer ads (3 …
posted by Walter Olson @ February 13, 2009 2:10 PM

 

February 10th, 2009

Is the Curb Part of the Sidewalk or Part of the Street? (Clear Writing Award)

You get so used to seeing dry legal writing, both from adversaries and the bench, that when plain English comes along, you just want to leap up and kiss congratulate it. When it comes in a dry trip and fall lawsuit, it’s all the more remarkable.

And so today I’m giving New York Supreme Court Justice Matthew Cooper the Antonin Scalia Clear Writing Award. Or at least I would give it to him if such an award existed.

In this opinion Justice Cooper needs to determine if the curb is part of the street or the sidewalk, because such a determination reflects on who may be liable for its decrepit condition. He’s asked to make this decision in a summary judgment motion, which is to say, there must be no ambiguity about it for him to take a factual issue away from a jury.

And so, with no further ado, I bring you Justice Cooper [applause, applause] in Takebe v NYC Housing Authority. I hate block quotes, but this is worth it:

Everybody involved in this case agrees as to exactly where on Manhattan’s West 89th Street plaintiff, Miyoko Takebe, allegedly tripped and fell. In fact, the location of the roughly eight-inch-wide triangular break in the concrete has been so clearly identified through photographs and deposition testimony that a global positioning system could probably zero in on it with pinpoint accuracy. The problem is that nobody can agree on a fundamental question: Is the fateful spot on the sidewalk or is it on the curb?

Not too shabby a start, but then he gets to compare and contrast the sidewalks of New York and Paris, toss in a Jim Carey movie reference and add some commentary on dog walkers that are told to curb their dogs. And that, my friends, is something you won’t see everyday an opinion:

It turns out that what is the sidewalk and what is the curb, prosaic as that may sound, is anything but clear. This is true not only for this case in particular, but for sidewalks and curbs in general throughout Manhattan. In many cities and towns, the curb generally defined as “the stone or concrete edging forming a gutter along the street” is indeed easy to recognize and differentiate from the sidewalk. Along the boulevards of Paris, as laid out by the civic designer Baron Georges-Eugene Haussman in the second half of the 19th Century, the curb takes the form of weighty quarry stones proudly separating the sidewalk from the street. Along the orderly and uniform streets of Truman Burbank’s Seahaven, every curb is a well-formed concrete edge set apart from the sidewalk by a strip of manicured lawn.

But along the mean streets of New York, at least as far as curbs are concerned, it seems that almost anything goes. In some places there are real curbstones, in others there are defined concrete curbs separate and distinct from the sidewalk pavement. On many streets, though, there is nothing but a rusted metal edge between the sidewalk and the roadway, or there is only the barest trace of a concrete border differing almost imperceptibly from the sidewalk pavement in color or composition. And then all too often the sidewalk just seems to end at the street without any line of demarcation whatsoever. Under the circumstances, it’s little wonder that so many people ignore the command to “curb your dog.” Quite simply, they don’t know where the curb is.

And of course, a little law tossed in after the experts duke it out over sidewalks, curbs and streets:

Because in this case the curb is not readily identifiable, at least to this court’s eye, there remains an issue of fact as to whether the place where plaintiff sustained her injury is the sidewalk or the curb. Consequently, summary judgment is not appropriate.

I hope Nino doesn’t mind me appropriating his name for an award.

Links to this post:

march 1 roundup
somehow not shocked to hear this: “aba pushes for 1000-lawyer legal corps” [aba journal]; appeals court will consider whether roommates.com violated fair housing law by asking subscribers about sexual orientation [heller, onpoint news] …
posted by Walter Olson @ March 01, 2009 11:26 AM

 

February 9th, 2009

Can Alex "A-Roid" Rodriguez Be Sued by 2003 MVP Runner-Up Carlos Delgado?

The question came to me from my brother via email, and I confess not to know the answer. But the question sure is intriguing.

Yankee superstar Alex Rodriguez admitted today that he used steroids in 2001-2003 while playing for the Texas Rangers. In one of those years, 2003 he took the MVP title. He said at the time:

“It means the world to me…I’m so proud. It really is a validation to all the hard work and dedication.”

Right. Validation for hard work. OK. Moving on to the ramifications.

Those titles usually carry big, fat bonuses with them. A-Roid picked up a $500,000 bonus after he won the award getting six first place votes from the Baseball Writers Association, which decides such titles, among his 240-vote total. And in second place was Carlos Delgado with five first place votes among his 190-vote total. I think it’s fair to say that A-Roid would not have received those votes if the writers knew he was getting a little chemical help.

Delgado, it seems, has a very credible claim he was cheated out of the MVP award which, depending on the nature of his contract, could have been worth a small fortune for the win. But it’s not just bonus money at stake; he probably would have received larger future contracts. There’s a lot of money in being #1.

So can Delgado bring a successful suit? Anyone with an answer?

Some sites covering the story:

  • What To Make Of A-Rod’s Admission That He Used Steroids (Fan IQ Blog)

    Well, rather then take the long, lawsuit-infested road to eventual full discovery that he did in fact use steroids, Alex Rodriguez today just decided to openly admit he used PEDs for three years as a Texas Ranger. And thankfully he didn’t say that he accidentally “ingested” something.

  • A-Rod’s Confession Is Solid Move (MLB Fanhouse)

    But regardless of the forthcoming repercussions — and there will be plenty — A-Rod’s confession on national television will go down in history as a well orchestrated public relations move. I’m serious.

  • How do you punish A-Rod? (Dallas Morning News)

    How do you do anything to admitted steroid user Alex Rodriguez? It’s no wonder he came clean. There is absolutely nothing that Major League Baseball will do.

  • ARoid: Alex Rodriguez Confesses to Steroid Use but Leak of 2003 Test May Have Been Criminal (Findlaw)

    Over the weekend, New York Yankees third baseman Alex Rodriguez was identified as having tested positive for steroid use in 2003. Today, he admitted to using performance enhancing drugs from 2001 to 2003. While the highest paid player in baseball history may suffer permanent damage to his legacy, the leak of his positive test in 2003 may have been a crime.

  • Playing Defense Against A-Rod’s Incomplete Contract (Dan Hoffman @ Concurring Opinions)

    Sometimes it’s tough to find a legal angle on the latest micro-scandal. Not so with the revelations that the hated Yankee slugger Alex Rodriguez tested positive for steroids in 2003.

  • MLB Great Debates: Is Alex Rodriguez’s Admitted Use of Steroids a Big Deal? (MLB Outsider)

    Fans seem to feel that cheating somehow belittles the accomplishments of past greats whose numbers no longer hold up. But when exactly did cheating in baseball start?

 

February 3rd, 2009

Video: The Future of the Legal Blogosphere (And it isn’t Twitter)

I visited the LegalTech show in New York today, sponsored by IncisiveMedia. I was invited into their booth for an interview by Jill Windwer (Vice President, Law.com). The subject was yesterday’s post on The Future of the Legal Blogosphere.

This is the video version:

Note: I am an advertising affiliate of IncisiveMedia, formerly ALM. I discussed this last July in A Personal Injury Blog Grows Up (Welcome ALM Readers)

 

February 2nd, 2009

The Future of the Legal Blogosphere

Having now trashed Twitter (Twitter and The Age of Information Overload) before using it and semi-trashed it again after using it (Twitter: A Review), and having concluded it is not the future, the question remains: What is the future of the legal blogosphere?

To figure out the future, you have to know what the present is, which is easier said than done in a fast-moving digital age. But the present information distribution seems to be dominated (for attorneys) by a few distinct forms (leaving aside static web sites):

  • Listservs, which are set up generally based on either locality or practice area;
  • Individual Blogs such as this one or group blogs such as Volokh or Concurring Opinions (both run by law professors); and
  • Social networks such as Facebook, Linkedin, and increasingly Twitter.

This will change, and if you pull up a chair, I’ll look into my crystal ball. For I see a future that blends and links together each of these three. No one has created the site yet, though someone surely will.

First, what is missing from the legal blogosphere is a group blog for practicing lawyers. While Volokh or Co-Op are possible templates for group blogs, I see something more akin to the splashier Huffington Post, except that it would be written by and for lawyers. The benefits of such a blog or webzine to the writers should be obvious: You can have 100+ contributors, who may not want to write something each week (or day) as is the custom with individual blogs. And the benefits to the reader should be equally obvious: An enormous amount of content under one roof from a wide variety of writers.

Now mix in the social element, whether this is for swapping tips and links or engaging in political discussion away from one’s own practice area. It happens to some extent in comment areas, but this is limited. It also is happening in Twitter, but the format is anything but ideal. Twitter is a crude technology, as compared to what is already available, and will not have staying power for lawyers when a better site is created. A well-located and well-designed legal forum can be significantly superior to it.

Well designed discussion boards such as those operated by The Motley Fool financial site, for example, have been enormously popular for over a decade, and the ability to write/read in threads and ignore users/threads is incredibly simple. There are no extra programs to download and no tools to learn.

Just as The Fool centers on stocks, the law forum would center on law. (Though, as testament to the power of community, you can see a vast array of other forums such as politics, and about 20 different boards related to sports at The Fool site.)

And each user of the site can have a profile page that would list, to the extent that people wanted it, contact information and links that allows for social networking and professional marketing.

This site — be it called The Motley Post, Huffington Fool, or Turkewitz Times Version 3.0 (version 1.0 was 20 years ago and this blog is 2.0) — would also have a reader base with some of the best advertising demographics in the nation. Advertising (cars, booze, travel, etc) would be an easy sell relative to other sites, as would law firm sponsorships.

Who will create this site? The logical candidates are:

Thus, a savvy entrepreneur will one day blend the desires for blogging and the desires for a legal-social element into one web location, in an easy-to-use site.

I don’t know when it will happen, but it will. And remember, you heard it here first.

(And yes, The Turkewitz Times is available for licensing. I’m just sayin‘.)

Updated: I was interviewed at LegalTech New York regarding this post, and you can see the short interview here.

Links to this post:

blawg review #198
the last time i hosted this carnival, we looked to plato for inspiration: “wisdom is the chief and leader: next follows temperance; and from the union of these two with courage springs justice. these four virtues take precedence in the …

posted by Jeremy @ February 09, 2009 7:00 AM

legaltech: trends affecting contract attorneys … and oh yeah …
we had 6 posse list members covering legaltech new york this year, trawling the vendor booths and attending several of the seminars/panels. it was the usual mass of vendors and attendees crammed into too small of a space — and spotty …

posted by mrposse @ February 05, 2009 2:18 PM

quickies and white lies
no, this post isn’t about guys who break-up with you just before valentine’s day. it contains a few follow-ups and forecasts about sex offender laws, schenectady’s felonious ex-police chief, the future of the legal blogiverse, …
posted by David Giacalone @ February 03, 2009 10:37 AM