February 26th, 2009

Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters) – Updated

The ads are gone. All of them. In the wake of the crash of Continental 3407 near Buffalo I tracked seven different law firms using Google Adwords to advertise for victims, and every ad has now disappeared. (Search terms used: “Continental 3407” and “Buffalo Plane Crash.”)

(Update at 5:18 pm on 2/26, a search for “Continental 3407” once again brings up an ad by the Washington DC firm of Clapp, Desjardins & Ely. I wrote about them last week in DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients.)

So here is a quick and dirty analysis as to whether or not attorney anti-solicitation rules were the reason, based on three recent disasters.

First: On October 15, 2003 the Staten Island Ferry crashed killing 11 people and injuring 71. In the following days the Staten Island Advance was flooded with lawyer ads. This was the impetus for New York’s 30-day anti-solicitation rule, which went into effect at the beginning of 2007. (I tried to get back issues to actually count the ads, but they were not available.)

Second: On September 28, 2008, a Metrolink train crashed in Chatsworth, CA, near Los Angeles, that killed 25 and injured over 100 more. Kevin O’Keefe counted at least 25 sponsored ads by attorneys when he ran a Google search for “Los Angeles Train Accident Attorney.” California does not have an attorney anti-solicitation rule.

Third: The crash near Buffalo had only seven ads, and most (as detailed in the links below) were from out of state.

While this isn’t the most scientific of experiments, the sharp contrast leaves little doubt that ethics rules are effective in putting a sharp brake on attorney solicitation (or at least this public type of solicitation). Bearing in mind that there are about a million lawyers in the nation and about 75,000 in New York, the restraint shown has been extraordinary. Only a very few people attempted it, and they quickly withdrew.

Whether the rules survive First Amendment challenge due to the difficulty defining solicitation given the myriad ways it can be done under cover of writing about an incident on a website or blog, as I’ve previously discussed, is another story.

These rules exist in eight states (as of July, 2007) plus a federal rule specific to aviation disasters. The only judge to review the rules so far, Judge Frederick Scullin, Jr. sitting in the Northern District of New York in Alexander v. Cahill, wrote in a footnote about the reason for the rules:

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 the legal profession has been greatly diminished.

That decision has been appealed and was recently argued in the Second Circuit.

Prior posts on this subject:

Photo credit: Jordan Husney (via Flickr)

Links to this post:

march 5 roundup
uninjured patients of california, unite to demand the money you have coming to you! [russell jackson via pol]; lawyer’s nastygram to blogger patterico: how dare you talk to my witnesses as part of your research on my case? …
posted by Walter Olson @ March 05, 2009 9:35 AM

 

February 25th, 2009

The Kings of Blawg Review

Blawg Review, that weekly round-up of the legal blogs that travels from site to site, celebrates its 200th edition this week. And with that, we tip our caps to two people:

First, there is Ed., the anonymous Editor of the review who runs the show, who did Blawg Review #200, who has also done ten …count ’em ten …of those reviews. Without Ed., there would be no Blawg Review. And if someone else were doing the organizing, you just know it wouldn’t be nearly as good. That’s Ed. to the right.

And then there is Colin Samuels, winner of the 2008 Blawg Review of the Year at Infamy or Praise with #189, based on the the Rime of the Ancient Mariner. (My nominations are here.)

Of course, Samuels also won in 2005, based on Dante’s Divine Comedy:Inferno. And he won in 2006 based on The Divine Comedy: Purgatorio. And he won in 2007 based on The Divine Comedy: Paradiso. I don’t know about the rest of you, but I’m starting to see a pattern.

Ron Coleman’s #191 at Liklihood of Confusion took second place with a Chanukah theme. And there was a tie for third between Rush Nigut’s Blawg Review #147 based on the Register’s Annual Great Bicycle Ride Across Iowa, and David Gulbransen’s Blawg Review #182, a special bar exam edition. My Thanksgiving themed review with Arlo Guthrie, on the other hand, was apparently a real turkey.

How can Samuels be stopped in 2009? We’re gonna need The Bogeyman to get involved just to give someone else a chance.

 

February 24th, 2009

NY Court of Appeals Urges Legislative Action On Insurance Issues (Updated)

I hate medical lien claims when it comes to my clients. And that is because, in New York, the law is unsettled as to when and how an insurance company that provided medical care to an injured party can recoup its payments. Lawyers hate uncertainty.

Today, in Fasso v Doerr, the Court of Appeals tried to tackle the issue. I say “tried” because the legislation is unclear, leaving a vacuum for the court to work in.

The details of this problem will bore most readers to tears, but if you are a practitioner (or policy maker/wonk) you should click on that link and read.

Part III of the decision is the request to the Legislature to clear this mucky area up.

Updated: As noted in the comments by Roy Mura, he has done a long treatment of this case over at his blog, Coverage Counsel. If you find the issue of permissive intervention by insurers to be of interest, as well as the issue of equitable subrogation rights by an insurer that they may have (and if you practice personal injury law you have to be up to date on this, even if you hate the subject), then head over there for a reading of Mura’s post.

 

February 23rd, 2009

Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims? (And A Round-Up)


I was all set this morning to write that the lawyers I found last week running Google ads regarding the crash of Continental Flight 3407 near Buffalo had all been pulled down. There were seven law firms involved: Three from Chicago, two from Philadelphia, and one each from Houston and New York. I had done a Google search while on vacation in Florida on Saturday and, when I found none, asked Scott Greenfield to run one in New York in case there was some regional difference in the Google algorithms. He also found all the ads gone.

But as I sat down to type this morning I did one last search and, lo and behold, a search of “Flight 3407” finds that the Ribbeck Law Firm of Chicago has an ad again, and they seem to determined to make themselves a test case of New York’s 30-day anti-solicitation rule. This is the firm that built a site specifically for this crash, www.Continental3407.us.

It’s worth noting that the web site has now been modified. This come-on previously appeared on the site after expressions of sympathy:

Please feel free to contact us at 1 312 xxx-xxxx or 1 312 xxx-xxxx should you
have any questions. You can also send an e-mail to Monica Kelly(aviation
law) at [email protected].
Operator Colgan Air, as
Continental Connection

The modified site no longer screams at people to call them, but expresses condolences and tells people how to contact them in more subtle ways. You can see the old version here and the new version here: RibbeckFirm-modified site.

Thus, in modifying the site, the firm apparently seems to believe that they stepped over the ethics line with a flagrant solicitation, in violation of New York’s 30 day anti-solicitation rule and the 45-day federal anti-solicitation rule (depending on the fed definition).

But the firm may also likewise believe that running a Google ad designed to appear for a “Flight 3407” search inquiry with the overt part of the solicitation now removed, will somehow save them from the ethics rules.

The un-tested ethics rules would seem to say otherwise. Ribbeck seems to fail on all four prongs of New York’s definition of solicitation. Note in particular the very troublesome section “b.” It is troublesome due to the difficulty sometimes in defining “the primary purpose” of a communication. According to Ethical Consideration (EC) 2-18 of New York’s Code of Professional Responsibility:

A “solicitation” means any advertisement:
a) which is initiated by a lawyer or law firm (as opposed to a communication made in response to an inquiry initiated by a potential client);
b) with a primary purpose of persuading recipients to retain the lawyer or law firm (as opposed to providing educational information about the law) (see EC 2-6(c));
c) which has as a significant motive for the lawyer to make money (as opposed to a public interest lawyer offering pro bono services); and
d) which is directed to or targeted at a specific recipient or group of recipients, or their family members or legal representatives. (emphasis added)

Since Ribbeck had flat-out asked people to call when they set this web site up, though, they will be hard pressed to claim that solicitation of victim’s families was not the primary purpose.

Other posts I’ve made on this subject, dating back to the start of this blog and continuing through with the splash landing in the Hudson of Continental Flight 1549 until the present:

Links to this post:

march 5 roundup
uninjured patients of california, unite to demand the money you have coming to you! [russell jackson via pol]; lawyer’s nastygram to blogger patterico: how dare you talk to my witnesses as part of your research on my case? …
posted by Walter Olson @ March 05, 2009 9:35 AM

 

February 17th, 2009

DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients (Updated)


Query: How hungry does a law firm have to be to run the risk that their client acquisition tactics will put them in ethical hot water?

Shortly after the crash of Continental Flight 3407 near Buffalo, I wrote that the crash would test New York’s new 30-day anti-solicitation ethics rules. I did a few searches to establish a baseline and chronicled the development of the marketing. The marketing takes several different forms, as I noted after the US Airways splash landing, and includes how attorney ethics can be laundered. I also wrote that some of techniques might afoul of the First Amendment and needed to be modified. The Second Circuit currently has one case on the subject.

And so yesterday I ran a new post on those firms that have started marketing, one with a brand new website and others with Google ads directing people to the firm’s existing site (Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?)). Three firms from Chicago and one from Houston were found to be apparently soliciting in this fashion, as well as one from New York.

Today comes another (hat tip to Patrick from Popehat). If you Google “Flight 3407” you get this ad in the sidebar:

CDE – Aviation Lawyers
Experienced aviation accident and
transportation injury lawyers
cdelaw.net

So once again we see a firm, this time Clapp, Desjardins & Ely of Washington D.C., apparently using keywords to trigger the ad placement while avoiding a direct reference to the flight in the ad. But the page it brings you to is unambiguous, with this invitation on the home page:

Click for information on the Crash of Continental Express flight 3407.

After clicking the ad, I headed to the new page where, after expressing their sympathies, the lawyers write (/ClappWebSite2%[email protected]):

We are willing to meet with any family affected by this tragedy. Should you wish to set up a meeting, either in person or via a conference call to discuss your legal needs concerning the Continental Express Flight 3407 crash, please call Mike Ely or Doug Desjardins at 202-xxx-xxxx.

In the old days, solicitation took place with direct contact by mail or in person. Then New York altered its ethics rules to include cyber-solicitation, and that also applies to solicitation from from out-of-state law firms. You can read about it at this prior post.

There is also, as I noted yesterday (as had a couple of commenters) a federal prohibition against solicitation.

So it appears that the firms jumping into the advertising game are willing to take the risk of action against their licenses in exchange for acquiring new cases.

I have no doubt that if New York or the feds open ethics investigations, there will be these defenses:

First: Somehow claim that the ad wasn’t a solicitation to victims’s families; and

Second: Even if it is, it is protected by the First Amendment; and

Third: That they weren’t responsible for the ad placement, but that a marketer did it without their knowledge. Turning a blind eye to what is being done in the name of the law firm will no doubt occur.

But as I noted yesterday, when ethics is tied to marketing, and you outsource your marketing, then you have also outsourced your ethics.
—————————————————
Updated: The Philadelphia firm of Messa & Associates has jumped into the cyber-solicitation chase. See the first comment.