Source : telegram.com
Category : Attorney Matthews Bark
By : Shaun Sutner, TELEGRAM & GAZETTE STAFF
Posted By : Matthews Bark
For the first time in more than a decade, the state Supreme Judicial Court is proposing major revisions to its rules governing lawyers’ conduct, including changes that could rein in aspects of lawyer advertising that some critics have called misleading or potentially deceptive. Under the new rules, personal injury lawyers who list notable payouts on their websites — a common marketing practice — may have to provide more detailed information, according to some legal experts. One area that might be beefed up is listing which payments result from jury verdicts and which are settled out of court.
“It’s potentially misleading when there’s no full disclosure how those sums were earned and if they’re talking about litigation and all they really did was negotiate with insurance companies,” said Martin W. Healy, chief legal counsel for the Massachusetts Bar Association. “Why would you even need a law degree to do that kind of work?” Also, law firms that frequently refer cases to other firms — and receive hefty referral fees in the process — may have to prominently disclose that information in marketing materials,
“A disclosure in advertisement is a good thing,” said Mr. Healy. He noted that the bar association has been calling for tighter regulation of lawyer advertising since 1998, when the SJC’s Rules of Professional Conduct were last overhauled. Mr. Healy called the proposed changes “a step in the right direction,” but said it remains to be seen how they will be interpreted and whether the Board of Bar Overseers, which sanctions lawyers for malpractice or malfeasance, will bring actions based on them. The proposed rules were released July 11; the public comment period will be open until Dec. 2. Meanwhile, another common marketing technique, using actors or images of actors to depict lawyers, does not appear to be affected by the new rules, though the practice is objectionable to some, including the bar association. When the SJC regulations were revised in 1998, the bar association argued that marketing techniques such as dramatizations and testimonials “are inherently deceptive,” Mr. Healy said.
But the SJC at the time decided to broadly interpret a U.S. Supreme Court decision from the 1970s that legalized lawyer advertising for the first time, and rejected stronger controls that the bar association was proposing, Mr. Healy said. Since then, such marketing dramatization has been familiarized in Worcester and in other cities across the state by the law offices of Mark E. Salomone, who uses the image of TV lawyer Robert Vaughn in his Web ads and offices. Mr. Vaughn’s stern visage, embodied by a life-sized cardboard cutout, stares out at potential clients through the front window of Mr. Salomone’s office on a downtown corner in Worcester Mr. Healy, the bar association official, takes issue with idea of using a TV actor who looks like a lawyer to catch the interest of customers, even though many argue that using dramatic techniques to sell legal services is the same as using them to sell consumer products or other services. Pro-advertising arguments also usually note the constitutional right to free expression.
“I think it is misleading to the public. It’s dangerous. You are dealing with a vulnerable segment of society who may have been traumatized by corporate wrongdoing,” Mr. Healy said. Mr. Salomone and an executive of his law firm who usually handles media inquiries did not return several voice mail messages seeking comment. On a recent visit to Mr. Salomone’s Worcester storefront office, the clerk who staffs the office three afternoons a week unlocked the door and asked a reporter if he was looking for legal services. She explained that the door is kept locked for safety reasons and that lawyers come for appointments only.
Mr. Salomone’s Springfield-based personal injury law practice runs TV and Internet ads featuring liberal use of the image of Mr. Vaughn, the trusted veteran actor. Like Mr. Salomone, other big-name personal injury lawyers, most notably James G. Sokolove of Newton — reportedly the largest legal advertiser in the country — saturate the Web, cable TV and radio with advertisements selling the prospect of million-dollar-plus settlements. Mr. Sokolove’s Web videos and TV ads offer a fleeting small-print disclosure at the end that many cases are referred to other lawyers. Mr. Sokolove did not return calls seeking comment. Some personal injury law practices offer no such disclosure. Richard J. Rafferty, a Worcester personal injury specialist whose TV and radio ads are in frequent rotation in Central Massachusetts, lists on his website more than a dozen cases in which he’s won money for his clients. None of them were the result of jury verdicts, he said. That is why identifying details, such as the names of the plaintiffs and defendants, are not public record; such settlements are usually kept private via non-disclosure clauses.
Because they are private and not a matter of public record, most out-of-court settlements are impossible to verify independently.
And while Mr. Rafferty claims in his ads that he’s won “millions of dollars in compensation” for his clients, he acknowledged that his main business is processing as many as 400 smaller claims each year, ranging from $3,000 to $75,000 in slip and fall, workplace injury and minor car accident cases. So the millions of dollars are an aggregate sum, a claim that the bar association maintains could be found questionable if the new lawyer conduct rules are adopted. But Mr. Rafferty asserted that he has also won large cases. “I hit a $1.4 million med-mal (medical malpractice), a $2.8 million med-mal,” Mr. Rafferty said. “I’m not a referral service to Boston. We do our cases.” He said he could not reveal particulars from those cases because of attorney-client privilege. “Most good cases settle,” he said.
None of the big settlements Mr. Rafferty referred to appear on his website, though about a dozen settlements — ranging from $4,000 for a client who got his foot stuck in pavement to $775,000 for a motorcyclist hit by a truck — do. Mr. Rafferty said he could not disclose details from those cases. As for his advertising claim that he’s won millions for his clients, Mr. Rafferty said: “I’m not being misleading at all.” Mr. Rafferty said he refers about 10 percent of cases that come to him, often large medical malpractice lawsuits that he said he is not equipped to handle. He said he often works on those cases as co-counsel, and does not simply refer them. Some lawyers, along with firms such as Mr. Salomone’s and Mr. Sokolove’s, are noted for referring promising clients to big Boston firms equipped with the staff and monetary resources to pay for big up-front payments for travel, expert witnesses and research specialists. The advertising lawyers usually collect fees that amount to a third of settlements for the referrals but often end up doing little or no work on cases. Much personal injury advertising is focused on workplace injury, product liability, medical malpractice, dangerous drugs and diseases such as mesothelioma, a cancer caused by asbestos. Often these are large tort, or personal damage, cases with the potential for getting big payments from deep-pocketed corporations and insurance companies.
“People are putting up millions of dollars advertising services they’re not performing,” Mr. Healy said. “We feel there should be a disclaimer and it should be prominent. Most cases of this type are not handled by the (originating) firm.” Robert A. Riordan, a lawyer for another high-volume Worcester firm, Ellis Law offices, which lists numerous big-ticket cases on its website without identifying information, would not say which, if any, of those were the results of referrals to other firms. “Certainly there’s no false information on that,” Mr. Riordan said, adding “or the BBO (Board of Bar Overseers) would be working on that.” Asked whether it is true that Ellis — whose ads suggest a highly skilled and aggressive team of litigators — actually settles most cases, Mr. Riordan said he just tried a case recently resulting in a sizable payment, and then abruptly ended the conversation.
Mr. Riordan later provided court documents showing he won a $677,540 verdict in Worcester Superior Court negligence case on Aug. 16 and a $90,000 verdict in Middlesex Superior Court in June in a slip-and-fall case. He also provided three short summaries published in Massachusetts Lawyers Weekly reporting settlements of $1 million, $230,000 and $180,000 won for clients by Ellis Law Offices. The cases were all from 2006. Mr. Riordan did not respond to a request to indicate for all of the 30 or so cases on the firm’s website which were jury verdicts and which were settlements, and which were referrals and which cases the firm tried itself. Among the listed cases are the $1 million one published in Lawyer’s Weekly, which involved a surgical sponge left inside a patient during a C-section, a $1.3 million firearms negligence case, and eight cases that settled for amounts ranging from $550,000 to $984,000. The rest range from $27,500 to $400,000.
Meanwhile, another personal injury lawyer, Jeffrey S. Raphaelson, who is based in Boston but is part of Worcester-based Raphaelson & Raphaelson, takes another approach. He lists only three big cases on his website, but two of them are public jury verdicts. In 2007, Mr. Raphaelson won $3.4 million from Otis Elevator Co. for the family of a Worcester middle school student whose right hand was mangled in an escalator accident in China when he was 4 years old.
Mr. Raphaelson went on to win nearly $2 million in 2010 for a Millbury couple in a medical malpractice suit against Worcester’s St. Vincent Hospital. In the escalator case, Mr. Raphaelson said he took on considerable financial exposure, as well as time, spending in the “six figures” out of pocket just for experts and travel and investing nearly nine years of work. “I can’t remember when I’ve referred a case,” he said. “It takes a fair amount of time to build up the expertise and there’s a significant amount of money at risk.” Mr. Raphaelson said good personal injury lawyers will put their best cases on their websites.
“If they haven’t done it, it’s not out of modesty,” he said. Hector Pineiro, a Worcester lawyer who also tries all of his own cases, said he believes lawyers who get referral fees ought to earn them. “They should share in the responsibility of the case or share the work,” he said. The proposed new rules governing lawyer advertising don’t include any such mandate, but they do appear to substantially beef up the obligations to disclose the specific services a lawyer is offering and to refer to the specific factual and legal circumstances of clients’ cases.
The existing rule essentially is a broad prohibition against misleading advertising; the new rules spell out in more detail requirements that would appear to force Web and other advertisers to include more detail. John L. Whitlock, chairman of the SJC committee that wrote the new rules based on the American Bar Association’s model rules, said the guidelines are a compromise between those in states that severely restrict lawyers’ constitutional right to advertise and those in which such advertising is largely unregulated. “There’s a fundamental rule we didn’t change and that is that advertising can’t be misleading,” Mr. Whitlock said. “If it’s misleading, it’s violating the rule. “
While some who argue for stronger regulation say advertising for legal services is clearly a separate concept than advertising for other commercial services and products, Mr. Whitlock maintained that a lawyer’s services are really no different than any other professional’s. As for the use of TV lawyers such as Robert Vaughn as advertising role models, Mr. Whitlock posed the question whether similar dramatizations used in other businesses would be similarly objectionable.
“Would you argue it’s deceptive when it’s dental services?” he said.
Source : telegram.com/article/20130901/NEWS/309019943/1116
Criminal Defense Attorney Matthews Bark 