Articles Posted in Lawyer Ethics

Today I am going to blog about legal advertising and my love/hate relationship with it.

First, why do Syracuse NY area personal injury lawyers like us have to advertise at all?

The question is a fair one.  After all, our law firm is, according not just to us, but to many of the best lawyers and judges in the area, one of the top personal injury law firms in all of Upstate New York.  We have won many awards and recognitions for our outstanding results and performances in court.  Judges and fellow lawyers sing our praises, as do former clients.  So why do we have to advertise at all? Shouldn’t word of mouth bring us more cases than we can handle?

Decades ago, when I was just a baby NY personal injury lawyer, most of my personal injury clients came from lawyer referrals.  Those other lawyers knew that my firm concentrated  in the field of personal injury law.  Those lawyers had discovered from past referrals to us that we got top results even with difficult cases.  Those lawyers in turn would tell other lawyers about us, and our referral base grew and grew in Syracuse, the Central New York area, and across the entire Upstate New York region.

Even back in those days, however, there were always some “cold calls” – people who found us not by referral from other lawyers, but directly, the old-fashioned way, by something called “the yellow pages”.  (If you are younger than 30, ask mom and dad).  But by and large it was our trusting network of referring lawyers who fed our personal injury pipeline.

Then came lawyer advertising. This followed on the heals of the Supreme Court case Bates v. State Bar of Arizona finding that bar association rules banning or strictly limiting lawyer advertising violated the First Amendment’s guaranty of free speech. The proverbial floodgates opened, and the flood of tacky “INJURED?” billboards and TV ads rushed in.

You read that right.  If you are injured in New York, whether in New York City, Albany, Syracuse, Rochester, Buffalo or the Southern Tier, do NOT hire a lawyer who claims to be a “specialist” or “specialized” in New York personal injury. Why?  Because if the lawyer you hire calls himself a “specialist” in New York personal injury law he or she is either (1) an idiot or (2) unethical or (3) both.

Why an idiot?  Because if he is in fact a New York personal injury lawyer he should know that New York’s lawyer advertising rules prohibit him from holding himself out to be a “specialist” in personal injury law.  If he is not an idiot, he is just plain unethical.  Why unethical?  Because if he knows the law (as he should) he is deliberately violating New York’s  legal advertising rules. That’s unethical.

A lawyer in New York can’t say she is a “specialist” in personal injury claims, nor can she say she is an “expert” in personal injury law or claims.  Those two words (“specialist” and “expert”) are verboten.  What lawyers can say is that they “handle” or “concentrate” in personal injury claims, or that they don’t do anything but personal injury cases, or even that they do nothing but live, breath, think and dream about personal injury cases.  But “specialize” and “expertise” are not allowed.

Happy New Year’s readers!   In my last blog I talked about my New Year’s plan to volunteer on a week-long assignment in an immigrant detention center near the Texas-Mexico border. I was to help asylum seekers advance their claims.  Not really in my wheelhouse, since I am a New York personal injury lawyer.  But I speak Spanish, and am married to a Guatemalan, and wanted to help out with all the Central Americans claiming asylum on our border right now.  I am writing now to report that my efforts were successful.  Here is an article by a reporter at the Finger Lakes Times about my journey.  Thanks for reading!

Mike Bersani

BORDERLINE: PART II: Freedom fighter

We did it again!  Once again, Michaels Bersani Kalabanka has been named in the annual U.S. News & World Report “Best Law Firms” in the practice area of both Personal Injury Law and Products Liability.  Is this a small honor? No it is not. The Michaels Bersani Kalabanka Law Firm was the only personal injury law firm anywhere between Syracuse and Rochester (not including those two cities) to be named to this nationally recognized 2017 directory of top personal injury law firms in the United States.  Moreover, we are one of only three Syracuse area firms to be ranked in the “first tier” of personal injury law firms in the directory.

Awards are nice.  It sure is great to be recognized for our hard work and success.  But in the end “awards” are not the “rewards” we seek. Winning for our clients is its own reward.

The four Michaels Bersani Kalabanka lawyers are so proud of our team’s incredible successes over the years.  Hard work and authentic concern for our clients have paid off.  Our support staff is the best!  And of course we could never have reached this high place without amazing referring attorneys and clients who put all their trust and confidence in us. To all of you, we give you our eternal thanks.

As we approach the end of the year, it is time for the Michaels Bersani Kalabanka personal injury law firm of Central New York to give out its “Worst Personal Injury Lawyer Advertisement of the Year Award”. This year we have a hands down winner. No need to even talk about a runner up. Not even close. Hold your applause until after you view the winning ad by “The Texas Law Hawk”:

Need I say more?

I am sure you can guess why many of our severely injured personal injury victims tend to fall behind in their bills. Hint: They can’t work! And while their debts piles up, their personal injury claim may not settle or get to trial for many months to come. Solution? They can just get a loan from us, their lawyers, right? Wrong! As lawyers we are prohibited from lending our own clients money — it’s considered a conflict of interest. Our hands are tied! So what do we do?

We do everything in our power to keep them afloat, except lend them our money. And we have many tools to get the job done: We can help them apply for New York State disability insurance and social security disability. We can help them get loans from family or friends by making a legal promise to those lenders to pay them off first – even before we pay our client – from any settlement or judgment we obtain. If our clients need more economic help still, we can refer them to a commercial claim lender who will provide cash in exchange for a “lien” against the personal injury case. The “lien” entitles the lender to be paid first from the personal injury settlement or judgment, plus interest.

And if all else fails, there’s bankruptcy. But we do everything we can to keep our clients from filing for bankruptcy. That’s a last resort. Why? After all, bankruptcy wipes clean most or all the client’s debts, giving our client a “fresh start”. What’s wrong with that?

New York State has a new rule — §202.5[e] of the Uniform Civil Rules of the Supreme and County Courts — requiring attorneys to omit or redact “confidential personal information” from court-filed papers. The “confidential personal information” includes social security numbers (except the last four digits), the dates of birth (except for the year), the full name of a minor (except for the minor’s initials), and financial account numbers (except the last four digits). Compliance with the new rule is voluntary until Feb. 28, 2015 at which point it becomes mandatory.

Why this new rule? Identity theft, a growing problem. Identity thieves might conceivable go to the Courthouse or County Clerk’s office to peruse publicly available litigation papers in search of enough personal identifying information to get a hold of bank accounts, etc. Further, court-filed papers are soon going online, which will make identity theft even easier.

This new rule makes perfect sense. New York personal injury lawyers like me often file in courthouses and county clerk offices “motions” attaching “pleadings” and deposition transcripts, which traditionally contained private identifying information (client’s date of birth, ss number, etc). At Michaels Bersani Kalabanka we have been proactive in protecting our clients’ personal information. For several years now we have refused to disclose our clients’ social security numbers in any “pleadings” or other publicly filed documents. When we are required to disclose such information to our opponents, we do so “off the record” so that the information won’t inadvertently show up in any public filings.

Litigation lawyers are, in a sense, at war. Each lawyer is fighting for his client to prevail. A spirited fight requires, sometimes, spirited verbal exchanges.

But there are limits. Fellow lawyers, here’s a little rule of thumb: Don’t call your opponent an “asshole”.

That’s exactly what one lawyer called another in Alexander Interactive v. Adorama Inc., a case involving a simple business dispute, and not, as one would expect given the level of vitriol, a roiling matrimonial case. The insult-hurling lawyer — whose surname is coincidentally “Savage” — dropped the “A-bomb” in an email to her opponent. Then the “Savaged” opponent – who apparently denied the charge — one-upped her by flipping the email over to the judge, who then sanctioned Ms. Savage with an admonishment, despite Ms. Savage’s pleas that her opponent had “provoked” her into her transgression.

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