Articles Posted in Lawyer Ethics

Many moons ago, before we humans invented a civil justice system, we resolved our disputes by brute force. Might made right. In the words of Thomas Hobbes, life was “nasty, brutish and short.”

Then trials and courtrooms evolved. We put down our fists and swords and let judges and juries hear our stories and resolve our disputes.

We’ve come a long way, baby.

Advice to a young personal injury lawyer:

Hey there young fella. Look at me! Grey hair is creeping up the side of my scalp. I am within shouting distance of 60-years old. I am now a veteran New York personal injury litigator. My running stride is slower, and aches and pains sometimes plague me, but hey, I’m wiser, too. So listen up young whippersnapper! Here’s a few lessons I’ve learned about life in this high-stress, time-consuming job you’ve chosen.

(1) Keep learning. No matter how good you are, someone else is always better. So be humble. You need to keep learning this trade until the day you die. Never think you know too much.

Being stupid and dishonest at the same time is a toxic mix. The math goes like this: stupid + dishonest = disaster. And here’s an example:

An Iowa lawyer was stupid enough to fall for one of those obvious email scams cooked up by some Nigerian shysters. You know, one of those emails that starts out with “Dear Attorney: We have urgent need to hire your firm for important matter involving large estate . . ..”

The Nigerian email schemers had a U.S.-based confederate, an existing client of the lawyer, help them convince the lawyer that the client was about to inherit $18.8 million from a long-lost Nigerian cousin. They then convinced the lawyer to represent the client to procure the inheritance in exchange for a 10% fee, which would amount to about $1.8 million.

The “Creepy Jury Stalker” story, straight from my hometown, Syracuse, New York, has gone “viral”. The New York Law Journal covered it, and so did the American Bar Association Journal not to mention the Syracuse Post Standard.

Now an even more important news source is covering it: Me.

The backdrop to the story is a dental malpractice trial in Onondaga County Supreme Court. The insurer for the defendant dental practice was AIG, the same AIG which helped collapse the global economy in 2008. I guess their fifteen minutes of fame infamy back then wasn’t enough, and they have come back to the trough for more.

One bad apple can spoil the whole bunch. Likewise, a few greedy lawyers can make all lawyers look bad. Here’s a prime example.

First some background. We New York personal injury lawyers generally charge a 1/3 contingency fee. Sometimes we work our asses off and the case goes south or we get a very small settlement or verdict. Cases that look good at the start can quickly sour when the other side pulls out its evidence. In those cases our per-hour fee can end up being a buck hour or less.

On the other hand, sometimes we get a great result for not-so-much work, and can earn a huge hourly fee. It all evens out in the end and we make a decent living, even a very good one if we are very good at what we do (we are!).

Giving back to those who make Cayuga County strong is a priority for the Auburn New York personal injury lawyers at Michaels Bersani Kalabanka. That’s why Michaels Bersani Kalabanka is honoring United Way of Cayuga County volunteers as “hometown heroes” at all Auburn Doubledays home games this summer.

How does this Michaels Bersani Kalabanka charitable program work? We asked the United Way of Cayuga County to nominate volunteer “heroes”. They chose dozens of volunteers who work with their 23 partner agencies and 41 programs throughout Cayuga County. At each home game, one United Way volunteer is publicly recognized and honored as a “hometown hero” and receives six game tickets and food vouchers for his or her family and friends. A different volunteer is honored at each home game, with a total of 38 volunteers honored. Michaels Bersani Kalabanka funds the program, including the free tickets and food for the “hometown heroes”.

What’s really cool about this program is how it recognizes that volunteering is not just an individual effort, but a family, community one. If family and friends aren’t right next to the volunteers while they are giving of their time and talents, then they are often helping them balance things at home and work so that they can volunteer. That’s why we at Michaels Bersani Kalabanka are treating not only the volunteers, but their family and friends as well. We are proud to “take them out to the ballgame”!

First, some background: The wheels of justice would come to a screeching halt without the Court’s power to subpoena non-party witnesses to testify in court. Subpoenaed witnesses, like it or not, must appear in court, take the oath, and testify about what they saw, heard, or know. In civil cases (such as personal injury trials) the judge doesn’t issue the subpoena, rather, the lawyers for the parties do under their authority as “officers of the court”. Each side subpoenas the witnesses it needs.

And it’s dirt cheap. In New York the party subpoenaing the witness must pay him only $15 a day (CPLR 8001[a]) no matter who he is or what he does for a living. The $500-an-hour business consultant is entitled only to the same $15 an hour as the street sweeper. Each has the same civic duty to appear. And if either refuses, he can be held in “contempt of court”, a punishable offense.

But can a party pay a subpoenaed witness more, even a lot more, if both agree to it? That’s the issue that came up in the recent Court of Appeals (highest Court in New York) case of Caldwell v. Cablevision Systems Corporation.

Are you against frivolous lawsuits? Good, me too. Not to worry. I’ve got the solution. Hold on. First a story.

Several years ago, a fellow Central New York personal injury lawyer secured a famously large settlement on a personal injury case. At a party a few days later, someone took issue with his fee. “Your 1/3 fee on that big settlement is not fair”. My quick-witted friend replied, “you’re right — it’s not fair. I did ALL the work, I took ALL the risks, but my client gets 2/3 of the money – NOT FAIR!”.

He was just kidding, of course. But in Spanish there is a saying: “From every joke, some truth does poke” (de broma en broma la verdad se asoma). The point of the joke is that, yes, the contingency fee IS fair! Actually, not only is it fair, it is the only system that makes “justice for all” possible. That’s because most people could never afford charge-by-the-hour legal fees. But even if you are poor, if you have a legitimate claim, you can find a lawyer to take the case on a contingency fee basis.

For a 57 year-old Central New York personal injury lawyer, I’m pretty social-media savvy. I blog, I tweet, I google, I post on Facebook, etc. So when I read some twitter chatter about an article titled “Juror Misconduct in the Age of Social Networking”, I googled the article and read it. It was a good read, and since you might not have the time or inclination to read the whole thing, let me summarize it for you.

It starts with this quote from Albert Einstein: “It has become appallingly obvious that our technology has exceeded our humanity”. I assume Einstein was thinking of the atomic bomb, not social media. I don’t think you can call social media an atomic bomb, though its impact on juries is certainly somewhat explosive.

The article goes on to describe how jurors are “tweeting”, “Facebooking” and googling with smartphones during jury duties, often in defiance of the judge’s order not to. If they are posting information about the case, or discussing it at all, or googling for information about the lawyers, their clients or witnesses, well, they are violating their juror oath. Jurors have been caught posting things like, “it’s gonna be fun to tell the defendant he’s GUILTY”. Other jurors have been caught trying to “friend” witnesses on Facebook. They have also conducted improper “investigations” online, for example, regarding the distance between two relevant locations, or the yearly profits of a defendant corporation.

I ran across a fellow personal injury attorney’s blog post pointing out that only one state, Oregon, requires attorneys to be covered by malpractice insurance. When you think about it, it is amazing there are no laws on the books in other states requiring attorneys to carry malpractice insurance, especially personal injury lawyers who handle multi-million dollar claims for their severely injured clients. Can you imagine surgeon not carrying malpractice insurance? Unheard of. Lawyers make mistakes, too, and their clients should be protected from that, just as doctors’ patients are.

I am not sure whether we need a law that all New York lawyers carry malpractice insurance. But I do think we need, at the very least, a law requiring full disclosure. I think all uninsured New York lawyers should be required to disclose, on their letterhead or in some other prominent place, “we do not carry legal malpractice insurance”. Why? Because most clients see lawyers as “rich” professionals, and assume they have adequate insurance coverage, just like doctors do. If they knew the lawyer they were about to hire was “bare”, they might decide to choose another lawyer who is covered.

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