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1 - - - Circle of Legal Trust The Art of Negotiation in Mediation Is Timing Everything? Negative SEQ Have you been hit? Effective Attorney Marketing for 2014 Attorney Fee Sharing Civility in Depositions s Vegas 2013 e first ever COLT get together

2 Table of Contents contents Publisher's Foreword... 2 Michael Ehline Admission of OSHA Regulations to Prove Negligence in W orksite Injury... 3 Jonathan Rosenfeld Negative SEO... 7 Steven Sweat C IVI. 1 1ty In. D epos1t1ons Anthony Castelli Don't Destroy Your Personal Injury Claim with your Personal Social Media Posts... ~3 Seth Price Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island... ~6 David Slepkow Information That Is Kept From Juries in Personal Injury Trials: Secrets Revealed Matthew Dolman Effective Attorney Marketing in the Digital World for 2014 and Beyond! Gerrid Smith The Art of Negotiation at Mediation I s T 1m1ng.. E ver-yt h. 1ng? Michael Ehline Editor's Closing Steven Sweat Page 1

3 C.O.L.T. publisher's foreword Hello and welcome to our honorary society of vetted lawyers and search engine experts. I am attorney Michael Ehline. I am the founder of the Circle of Legal Trust. Representing a grand experiment in "understanding attorney search", the Circle of Legal Trust is a trust based system, designed to protect and promote and develop trusted branding and prospective client relations for licensed attorneys, internationally. As our motto states, it is the place "where the law meets the semantic web." As the rules state, there are various levels of membership. The highest levels of membership starts with being "patched in". Authorized members have their own column in COLT Journal and are entered into a trusted "whitelist" at /web-o-trust.org. The Journal is a fusion of internet related issues, as well as related legal issues presented to users of the world wide web. From video taped depositions conducted via satellite, e-discovery, online legal ethics, social media, all the way to attorney marketing. Prior to April of 2012, there was a serious void for busy trial lawyers, barristers, solicitors and litigators trying to take advantage of the cutting edge technology afforded by Google, Bing, and Yahoo!. There was no peer support offered to law firms who had been hit by the Google Panda and Penguin updates, or who had hired unworthy SEO companies and in house marketers. Something had to be done to lift the "Sword of Damocles" of ignorance from the heads of worthy lawyers. Enter the Circle In the summer of 2012, several attorneys who were the very first users of Google Plus began to collaborate and realized that "one is none, two or more is one", and we started to share information about attorney search, proper online etiquette, understanding and interpreting the often vague, ambiguous and unintelligible local and organic search engine quality guidelines. We all decided that in order to do well online, one could not hire someone to run their online destiny. We discovered that one must integrate the search engines into their practice and consider it to be no different than filing a motion with the court. This is really what sets us apart. Our members learn what the experts know, and then mentor other members in their chapters. Being a member of COLT is a brand insurance policy that comes with fraternal support. We are proud to announce exponential growth in membership since its formation in the summer of In fact, this very journal commemorates our first annual Las Vegas Convention. See you live or at the HOA and enjoy our magazine and various web properties. Michael Ehline, Esq. Page2

4 C.O.L.T. worksite injury The Admission of OSHA Regulations to Prove Negligence in Worksite Injury Cases By Jonathan Rosenfeld Background Information and History of the Occupational Safety and Health Act (OSHA) The Occupational Safety and Health Act healthful working conditions and to (OSHA) was passed by Congress in 1970 preserve our human resources." for the purpose of ensuring a safe workplace for employees and defining an employer's standard of care in a workplace. The Act contains both health and safety standards that have been effective in assisting worker-plaintiffs in recovering damages against employerdefendants and other third parties. Prior to the enactment of OSHA standards, workers in the United States had few protections available to them under the law. The economy of mass product in the United States did not function in a manner to make workplace safety a priority. Instead, it was more affordable for employers in mass production industries to replace a dead worker than it was to place safety measures onto the market. Throughout the 18oos and early 1900s, workers continued to be injured during World War I and World War II. The increase of industrial production during World War II left over 14,000 workers dead and 2 million individuals injured due to inadequate workplace standards. It was not until the eventual passage of OSHA in 1970 that Congress sought to, "assure so far as possible every working man and woman in the Nation safe and Admissibility of OSHA Regulations in Work Accidents And Construction Site Injury Cases The majority view is that OSHA violations are admissible as evidence in tort cases. Some courts only view OSHA violations as "some evidence" that will not fully prove negligence. ( contd) Page3

5 worksite injury The Admission of OSHA Regulations contd. to Prove Negligence in Worksite Injury Cases There are also a minority of jurisdictions that hold OSHA violations are "per se" negligence or do not qualify as any evidence in negligence cases. The states that have chosen to exclude evidence of OSHA violations entirely are Arizona, California, Maryland, Michigan and Mississippi. As to federal circuits that allow OSHA violations to be entered as some evidence, these include the Third, Fourth, Eighth and Ninth Circuits. Understanding the Different Industries Governed by OSHA To decide which OSHA regulations are applicable in a negligence case, it is necessary to consider the type of industry in which an injury has occurred. The OSHA standards are divided into the following categories: General Industry, Construction, Maritime and Agriculture. The specific regulations under each industry "type" then convey the standards for inspections, general safety and health provisions, occupational health and environmental controls, fire protection and prevention, scaffolds, fall protection, use of equipment and information as to toxic and hazardous substances. As to the construction industry, there are also specific standards for excavations, steel erection, masonry construction and underground construction. For plaintiffs who wish to use a citation in a negligence case, it will be necessary to consider the work environment in which the accident occurred. A plaintiff can then find the specific standards put forth by the Occupational Safety and Health Administration for this particular industry. For example, a plaintiff injured by a broken scaffold may wish to admit evidence of an employer's failure to maintain the scaffold according to OSHA regulation 1926 Subpart L. Under 1926 Subpart L, the Administration is very careful to state that certain scaffolds (those with direct connections to floors or roofs) must be able to hold at least four times the tipping moment by the scaffold. Proving "Duty Owed" in OSHA Cases In addition to setting forth standards for the maintenance of equipment and other aspects of workplace safety, the OSHA regulations also set forth the "duty owed" for fall protection systems. Statutes that discuss the "duty owed" by an employer, such as the duty to have fall protection in place, can be highly relevant for proving the duty element in a negligence case. This type of statute typically discusses the actions that an employer must take to improve the safety of a workplace. As to the fall protection systems statute, an employer must determine if (contd) Page4

6 worksite injury The Admission of OSHA Regulations contd. to Prove Negligence in Worksite Injury Cases walking surfaces have structural integrity to support employees. There are also requirements that an employer add a guardrail to systems that have unprotected sides that are six feet or taller. If an employee was using equipment that did not contain this protective guardrail at the time of an accident, then photographs of the unprotected equipment or other evidence could be admitted to show how the employer failed to meet his or her requisite duty of care under the law. In jurisdictions that allow OSHA violations to be admissible in cases involving negligence per se, then a single violation could confer liability on an employer in a personal injury case without a need for additional evidence or proving other legal elements. In personal injury cases, negligence per se refers to a legal doctrine that enables a plaintiff to prove negligence by virtue of the violation of a statute or regulation. In this type of case, the plaintiff will need to prove that the defendant was in violation of the statute, there is a criminal penalty imposed under the statute, an action caused harm that the statute was intended to prevent and that the plaintiff was a member of the protected class under the statute. Most jurisdictions that allow OSHA violations to be admitted in negligence per se cases will require that the plaintiff by an employee of the employer. This is due to the interpretation that these courts have in which OSHA regulations are intended to protect harm to employees on worksites. An independent contractor may still be considered to be an employee when OSHA violations are used, as courts have found that OSHA imposes a duty on employers to protect the safety of every employee at an employer's worksite. This means that even independent contractors are considered protected under the statute. Use of Other General OSHA Standards in Personal Injury Cases There are also other instances in which OSHA standards may apply more generally in personal injury cases. Currently, there is no specific statute under OSHA that protects employees from violence at the workplace. Rather, OSHA goes on to define a standard of care under a general provision that states employers must provide employees with a place of employment that is "free from recognizable hazards that are causing or likely to cause death or serious harm to employees." This means that an employer does have a legal duty to ensure that an employee can work within a worksite that is free of hazards that could cause him or her to experience serious injuries, physical harm or even death. Those employees who have been subject to intimidation, threats or other instances of violence may have legal recourse available to them due to a violation of Section 5(a)(1). (contd) PageS

7 worksite injury The Admission of OSHA Regulations contd. to Prove Negligence in Worksite Injury Cases Researching OSHA Regulations for Negligence Cases Those plaintiffs who are interested in asserting a legal claim against an employer can find a full listing of the OSHA regulations at /www.osha.gov. The website contains a "regulations" part that lists the black letter law for workplace standards. Plaintiffs can also work with attorneys who have a specialty in this field and understand how OSHA regulations may be used in a particular jurisdiction. A violation of an OSHA regulation may be a crucial aspect of proving one's personal injury case before a judge and jury, and a lawyer can help choose the appropriate regulations to use in one's case. Jonathan Rosenfeld is a personal injury attorney in Chicago and regularly handles serious construction accident cases on behalf of injured workers and their families. For more information on Chicago construction accidents and other personal injury matters visit /www.rosenfeldinjurylawyers.com C.O.L T. Initiatives Legal arch THEe An attorney managed site providing consumers access to value added information on a state based platform. Members of the Circle of Legal Trust may be allocated a state or city based website or category which provides the attorney an additional online marketing channel ire leoft:il\ LEGAL TRUST~ Attorneys assisting attorneys in search and social issues surrounding marketing your law firm online. COLT members meet regularly on Friday mornings and generously donate their time in helping their peers get better results from digital marketing efforts. Page6

8 Negative ny steven sweat negative seo SEO The Ethical and Legal Implications of Negative Search Engine Optimization (SEO) Tactics For Attorneys and Their Agents As attorneys we have to face the fact that we are in a competitive business where we are marketing our services and trying to convince the public to hire us rather than another lawyer. The arena where this competition to gain clients is probably as fierce as any other is the internet. Like all business persons offering services for hire, attorneys can and, I believe, must assert their presence on the web. There are several ways to do internet marketing as an attorney which include buying placement through paid advertising the most popular of which are "pay per click" campaigns such as Google Adwords. The generic term for trying to gain placement with search engines through natural language searches in the so-called "organic" (i.e. non-paid listings) is called "Search Engine Optimization" (SEO), which has been broadly defined as follows: "the process of affecting the visibility of a website or webpage in a search engines natural search results." Can (and Should) Attorneys Engage in "Positive" Search Engine Optimization to Promote Their Online Content For the Purpose of Gaining Business? There are many different ways to engage in positive and ethical SEO practices as an attorneys. These include flrst and foremost providing good, original content targeted towards your potential clients. Providing good on-page content will tend to draw your target audience towards your website and share this information with others which will increase trafflc and visibility and affect your "pagerank" with the various search engines like Google. Social media is also a great way to promote content on websites and blogs where a lawyer has provided good information that can attract potential clients. There are various other ways that a lawyer can "shine a light" on their content and attract the attention of the search engines and I think every lawyer can and should be constantly engaging in providing relevant, original content on a weekly if not daily basis for the purpose of spreading information about their practice and their expertise in their area of law. This is a long-term process that can take months or years to see results by way of higher search rankings but, once you have established a well designed, original site or blog and continue to promote it, it will no doubt begin to appear for searches relevant to a lawyer's practice. (Contd.) Page 7

9 negative seo NegatiVe SEO (contd.) ny stevensweat What is "Negative SEO" and Are Attorneys Or Their Agents Engaging in These Practices Unfortunately, the room for organic or natural search results appearing on the first page of Google or any other search engine is small and, some think, continuing to shrink. For example, on average, there are about 10 natural search result slots on the average first page of Google and sometimes less depending upon the number of local search results and sponsored listings for any given term. This has led some SEO practitioners and their clients to try to "knock off' the competition from page one so that their site appears higher. One way which, in my opinion, is a bit insidious, is to attempt to negatively affect the rankings of competitor's sites through various tactics including surreptitious linking of the competitor's site to other sites and resources which the search engines view as negative associations. This can lead to penalties from Google and other search engines which lower the competitor's site ranking. Unfortunately, in larger markets like Los Angeles and in the more competitive practice areas like personal injury or criminal defense, these tactics have begun to be employed by lawyers and the persons or businesses they hire to do SEO services. I have seen this in my practice and other practitioners have also seen more and more evidence of this in recent years. What Are the Ethical and Legal Rules Which May Affect A Law Firm or Their SEO Consultants if They Choose to Engage in "Negative" SEO? In my opinion (and the opinion of Google executives including Matt Cutts and others) negative SEO tactics are not only not very effective but, also completely unethical from a business standpoint. If a site owner proves that a competitor has been engaging in negative SEO practices, this would obviously give rise to potential civil liability against either the practitioner or their client (i.e the competing law flrm). Most every state has both common law and statutory causes of action for intentionally interfering with a prospective economic advantage. In California, for example, the tort is defined as follows: "The tort of intentional or negligent interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition." Settimo Associates v. Environ Systems, Inc. (1993) 14 Cal..App.4th 842, 845. Additionally, California Business and Professions Code section provides for injunctive relief, restitution and attorney's fees for "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." (con td.) Steven M. Sweat is a founding partner of Glotzer & Sweat, LLP, a personal injury law firm based in Los Angeles, California. He is a proud member of the Circle of Legal Trust and Editor-in-Chief of the COLT Magazine. PageB

10 negative seo Negative SEO (contd.) By Steven Sweat Going beyond the potential for civil claims for injunctions or money damages, attorneys are also bound by rules of professional conduct related to advertising efforts. Most State Bar Associations or other regulating bodies have established these rules based upon the Model Rules of Professional Conduct set forth by the American Bar Association. The potential rules implicated in negative SEO practices. Model Rule 7.1: "A lavvyer shall not make a false or misleading communication about the lawyer or the lawyer's services" in relationship to any effort to advertise a lawyer's services. Model Rule 7.2: Requires any communications or publications related to advertising a lawyer's services include the "name and office address of at least one lawyer or law firm responsible for its content." For all these reasons it is neither good business practice nor ethical legal practice, in my opinion, to engage in "negative SEO" tactics. There are so many positive ways to influence your own search rankings and exposure on the internet and a lawyer's time and resources should be devoted to building a positive brand and image. It is not worth the risk of potential civil claims and ethical claims not to mention "bad blood" that is created among colleagues in the legal profession for the very limited chance that one's negative SEO techniques might actually knock a competitor off page one for some, limited period of time. Google has been VPS HOSTIING HOSTGATOR.COM GATOR tracking this issue and has taken many steps recently to adjust their algorithms to negate the effect of such campaigns and simply tools like disavowal of links can be used to fairly easily defeat negative SEO efforts. As with everything else in life, it is better to play fair and work hard! Resources and Citations: Wikipedia: Search Engine Optimization: en. wikipedia.org/wiki/search_engine_optimiz ation American Bar Association, Rules of Professional Conduct - /www.americanbar.org/ groups/ professional_re sponsibility /publications I model_rules_ of_profession al_conduct/model_rules_of_professional_conduct_ta ble_of_contents.html Google Webspam Team Head, Matt Cutts Youtube Discussion of Ineffectiveness and Remedies for Negative SEQ: /www.youtube.com/watch?v=hwjuu-gsu_i GET STARTID NOW Page9

11 C.O.L.T. civility in depositions CiVilitY. in By Anthony Castelli Depositions The public's perception of an attorney is that they will demean and be derogatory to witnesses every chance they get. This article will examine why this is usually a misconception in the context of a deposition. During the course of a lawsuit the attorney for the other side will want to take the deposition of witnesses including the person bringing the lawswt. As I only represent injured parties, my clients always have much worry as to what goes on in a deposition, what they will be asked and how they will be treated by the defense attorney hired by the insurance company. I allay their fears by explaining the process, role playing and preparing them. Very few lawyers are abusive although some can be. That is why the legal profession led by State Bar Associations and Supreme Courts have moved for Rules of Civility and Professionalism.Cl) In Ohio the professionalism commission is now over 20 years old. What is a Deposition and Why Combine Civility With It A deposition is a sworn statement with notice to the other side to be present and cross examine if they like. This is usually a question and answer session with a court reporter typing the testimony or a videographer recording the testimony. This is distinguished from an affidavit which is simply a statement in writing that is sworn to be true in front of a notary. Depositions are tools to find out what knowledge witnesses have. It is part of the discovery process. Although in certain cases depositions can be introduced at trial. As depositions are usually held in lawyer's offices there is no judge present to enforce the rules. So there is no one there to police the lawyer's conduct, but themselves. That is why civility defined as: ucivility is claiming and caring for one's identity, needs and beliefs without degrading someone else's in the process," < 2 > Continued...

12 C.O.L.T. civility in depositions Civility in Depositions con tel.... is critical in a deposition setting. The Ohio Committee on Professionalism Civility in Deposition Guidance The Ohio commission has issues a list of does and don't regarding depositions. Although they do not have force of law they are in essence guideline to civility regarding depositions. < 3 ) Some of the do's they recommend are:., Cooperate on scheduling. Don't just schedule a deposition \.Vithout calling your opposing counsel so they can coordinate their calendar.., If a deposition needs to be rescheduled t1)' to cooperate to get it done unless your clients rights are adversely affected.., If you are going to use documents or photos try to have multiple copies so all attorneys get a copy.., Try to agree on a reasonable time limit for the deposition., Treat the other attorney and the witness with courtesy.., If you have a problem with the other attorney ask to go off the record and go outside and try to agree on any problem issues. If you can not agree consider calling the Judge. (I consider this a bad idea as what Judge wants to be interrupted and make a decision off he cuff over the phone. ) The Ohio civil rules as do most jurisdictions have a procedure for handling abusive questions or actions. < 4 ) Some of the recommended dont's are: X Making 11 Speaking objections 11 which are often an attempt to coach the witness. Simply say object from and substance and you should be protected. X Insttuct a witness to refuse to answer unless the testimony is privileged, work product, or self incriminating or you believe the questioning is conducted to unreasonably annoy, embarrass, or harass. X Make rude and degrading comments to the witness or opposing counsel. X Take a break with your client deponent while a question is pending. The obvious implication is that you will be coaching the witness on the answer. But What if The Deponent Is Recalcitrant Sometimes the deponent will not cooperate. This is not a question of Civility but a question of what you can do under the law. You need to

13 C.O.L.T. civility in depositions Civility in Depositions contd keep control of the deposition. I f it gets too bad you should ask to adjourn the deposition and ask the court for sanctions. The video below is a rather comical example. Caution it has obscenity in it. Watch it at your own risk. Let me know if you ever had a deponent like this after you get done laughing. /youtu.be/i_fxnu_mrco Anthony Castelli is an Ohio personal injury trial lawyer with over 32 years experience and 25 civil jury trials. You can learn more about Anthony at W\vw.castellilaw.com. He handles accident and injury claims through out the State of Ohio and especially in Cincinnati, Columbus, Dayton, West Chester and Mason, Ohio Cita.tions: 1. /www.instituteforcivility.org/wbo-we-are/what-is-civility 2. /www.supremecourt.ohio.gov /Boards/CP /default. asp 3. /Publications/Depositions.pdf 4. /www.supremecourt.ohio.gov /LegalResources/Rules/ civil/ CivilProcedUl e.pdf Page 12

14 social media Don't Destroy Your Persona/Injury Claim With Your "Personal" Social Media By Seth Price Posts By now, most everyone with a digital presence has heard the warning multiple times... Whether you're a student, an employee, or a business operator, you're likely aware that posting status updates, tweets or photos that depict you acting irresponsibly could cause you unwanted trouble in your public life. ~ ~ the everyday observer, can offer evidence that will destroy your case. Assuming you pay attention to your own social media activities and those with whom you're connected, it's relatively easy to determine which posts and statuses are free of risk and which might cause you problems. For most responsible people who've been using the Internet for more than a little while, all it takes is a little common sense. But in the legal system, and personal injury cases in particular, the threshold starts to become much smaller when we examine what sorts of behaviors are "safe." Certainly, most forward-thinking people would hesitate before tweeting about being intoxicated in public, or posting pictures that show them riding a motorcycle without a helmet. But if you're a personal injury plaintiff, these are far from the only avenues by which social media can jeopardize your claim to restitution. Depending on the details of your injury claim, status updates, photos and various other online activities even one that seem innocuous to As soon as you become part of a personal injury case, you enter a situation in which the opposing side will attempt to discredit your claim in any way possible. One of the greatest advantages to obtaining legal representation as soon as you can is to guard you against making mistakes that might imperil your claim. Most injury victims who've read a few lawyer sites know they should avoid making statements to insurance adjusters or representatives of the defendants. Most know they should be wary of discussing the details of their case with anyone other than their own attorneys. With such a large portion of our everyday lives now depicted online, however, even the most routine activities can be used to undermine your claim to compensation. Let's suppose, for example, that you break an ankle in a slip and fall accident. If you pose for a picture while being supported by a friend, the opposition might be able to argue... (contd) Page 13

15 social media Don't Destroy Your Persona/Injury Claim With Your Personal Social Media Posts contd. in the future that you were able to stand on your own, thus calling into question the severity of your injuries. For noneconomic damages, such as pain and suffering, social media becomes even more potentially destructive. In these instances, even the most mundane details, such as your facial expressions in photos, can be used by the defendant's attorneys to argue that the accident did not cause as much damage as you are claiming to your happiness or the quality of your life. These tactics are not just hypothetical; they come up frequently in personal injury suits, often with case-altering results. Consider the story of a personal injury claimant in Gwinnett County, Georgia. The plaintiff, a 22-year old hairstylist who had broken an arm and suffered a laceration to her forehead in a car accident, said that her injuries had kept her away from work and caused her pain and suffering. The damage amount awarded by the jury, initially $237,000, was lowered to $142,000 after the defense presented the jurors with an account of the plaintiffs Twitter activities following her injury. She happily tweeted about being able to carry a purse with the arm that had previously been broken, and in further updates referred to an "epic weekend" spent in New Orleans and posted photos with friends on the beach. Both the defendant's and plaintiffs attorneys later agreed that her Twitter activities had damaged the credibility of her case. Even if you don't offer any evidence that can be used against you by the opposing lawyers, your social media activities can still threaten the value of your settlement. For example in the Georgia case above, the plaintiffs attorney, while insisting that none of his client's Twitter posts had contradicted the earlier statements she made about the injuries, admitted that her activities may have made the jury less sympathetic. ~ ~ ~.til 000 es OC co The safest suggestion for personal injury victims is to stay off social media altogether until the case is successfully litigated, but unfortunately - even when presented with the stakes - not every claimant is willing to heed this advice. Especially for those in their twenties or younger who've grown up with the Internet, the prospect of deactivating their Facebook account or halting all tweets may be unthinkable. If after having had the possible consequences explained to them, your personal injury client is still (contd) Page 14

16 social media Don't Destroy Your Personal Injury Claim With Your Personal Social Media Posts contd. unwilling to suspend his or her social media accounts, encourage them to at least audit them thoroughly. This Means:.., Adjusting settings to make their profiles private and non-searchable..., Not accepting friend requests from anyone they do not know personally, and de-friending or blocking anyone they do not seriously trust..., Not uploading photos or videos any time between the moment of the injury and the resolution of the claim. If such items have already been uploaded, they should be taken down as soon as possible..., Being extremely wary about what their friends and acquaintances post, especially if those users have public profiles. Sometimes a friend may unknowingly tag a plaintiff in a post or photo that later gives the opposition the opportunity to discredit his or her claim..., Not discussing any element related to the case with anyone online. This obviously includes the discussions claimants have with their lawyers, but also includes any details pertaining to the accident, the injury, or the plaintiffs recovery. Posting anything about "recovering well," for instance, can cause serious problems later on when a judge or a jury is trying to determine what a plaintiff is owed. As more and more of our daily lives get wrapped up in the internet, there is less and less conscious thought that what we post online instantly and permanently enters the watchful eye of the public. With opposing attorneys seizing any opportunity to fight a claim, a conversation on safe, responsible use of social media needs to be a staple of the attorney-client relationship in a personal injury case. The minimal message a client should take away is this - don't post anything online if you don't want the other side to see it. Sources: Technorati Seth Price is a founding partner of Price, Benowitz LLP, a prominent personal injury law firm based in Washington, D.C. with offices in Virginia and Maryland. You can find more information on his law firm at: jwww.pricebenowitzlaw.com/ Page 15

17 C.O.L.T. attorney fee sharing Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island Perhaps, the most significant By David Slepkow case regarding the ethical implications of out of state attorney advertising and attorney to attorney referral fees in personal injury cases derives from the little State of Rhode Island. In re application for Registration by the Law offices of James Sokolove, LLC, was a heavily fought out spat between a bunch of local Providence area injury lawyers against James Sokoloves' welloiled national advertising machine. The Ocean State Lawyers who battled James Sokolove all the way to the Top Tribunal in Rhode Island are some of the best known and experienced Injury Attorneys RI has to offer. Apparently, these big name local Injury players did not want Sokolove's Law Firm, the modern day Goliath, competing on their turf. The Sokolove Law Firm According to a 2009 Groundbreaking Sokolove expose by Boston Magazine: In 2007 Sokolove "paid over $20 million to promote., his firm, twice as much as the nextbiggest spender." "Sokolove's firm is currently keeping., tabs on some 10,000 open cases. Approximately 300,000 calls and e mails come into his office each year, more than at any other firm." ~*l? * {! {1 tr ~ ~p};j. *J;;t* Synopsis of Rhode Island Injury Lawyer's Battle to Keep James Sokolove From Opening a RI Law Firm: The lawyers in Rhode Island waged battle with James Sokolove on three fronts to keep him out of Rhode Island. The first front was an "initial complaint, filed with the Disciplinary Counsel and referred to the Disciplinary Board, alleged that Sokolove's television and print advertisements violated numerous provisions of the Rules of Professional Conduct, specifically those concerning attorney advertising when the lawyer is not licensed to practice law in Rhode Island." Id. This complaint was dismissed by a screening panel summarily. I d. (contd) Page 16

18 attorney fee sharing Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island contd. After the dismissal, the second front was immediately filed which was "a complaint with the UPLC, essentially alleging the same violations that had been raised before the disciplinary proceedings." I d. The UPLC is the Unauthorized Practice of Law Committee. Their efforts were thwarted once again. According to the RI Supreme Court decision: "The UPLC found that there was probable cause to proceed; however, Sokolove and his counsel met informally with the UPLC and reached an informal resolution agreement" Id. The third and final attempt played out on the front pages of the local newspapers and in front of the RI Supreme Court. In 2009, these Attorneys dug in a proverbial trench in in their last stand in front of the highest court in the state, The RI Supreme Court! The petition that was filed by these injury attorneys stated that they were, "objecting to the application of the respondent, James Sokolove (Sokolove), to register and practice law as a Rhode Island limited liability entity (Sokolove Law, LLC)" I d. In the end, Sokolove was allowed to open a personal Injury law firm in Rhode Island when the Court clearly and succinctly declared "We approve the application." Id. These accident lawyers appeared to have lost all the battles and the war when the Court rejected their arguments and allowed Sokolove's law firm to do business in Rhode Island in January This litigation raises the question of whether the time and funds expended would have been better used competing with Sokolove rather than trying to ban his firm from the State. Court Opines on Fee Splitting between Lawyers and Attorney Advertising Most states, including Rhode Island, follow the Model Rules of Professional Conduct from the American Bar Association to some degree or another in drafting their own rules as to how attorneys may advertise and divide case fees. ABA Model Rule 1.5 (e) states as follows: " (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable." (contd) Page 17

19 attorney fee sharing Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island contd. In a related rule on Attorney advertising, Model Rule 7.2, the guidelines state: "(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may... refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement." The Rhode Island Rules of Professional Conduct are basically modeled after these rules. However, there is an additional provision (Rule 7.2(f)) which also states as follows: "Any lawyer or law firm who advertises that his or her practice includes or concentrates in particular fields of law and then refers the majority of cases in those fields of law or of that type to another lawyer, law firm or group of lawyers shall clearly state the following disclaimer: "1. 'Most cases of this type are not handled by this firm, but are referred to other attorneys[,]' or if applicable: 2. 'While this firm maintains joint responsibility, most cases of this type are referred to other attorneys for principal responsibility."' In the Sokolove Case, the Court stated "Clearly, the Rules of Professional Conduct anticipate and permit attorney-toattorney referrals; fee-splitting, however, is regulated more stringently to protect the client from unscrupulous practitioners." The court noted that Attorneys are prohibited from paying non-lawyers or anyone else for funneling business or "channeling professional work" but, that attorney to attorney fee splitting is basically permitted so long as it complies with the guidelines set forth in the rules stated above. The court allowed Sokolove to continue advertising in the state under these rules and continue to refer cases to other lawyers for a share of the fee. What Can Lawyers Glean From The Rhode Island Sokolove Case? The lesson to be learned in this instance is to carefully review your own State Bar guidelines on both fee sharing among lawyers and advertising. Many times, attorneys want to advertise for different practice areas in different geographic locations for the purpose of obtaining some portion of the attorney's fees derived from these cases. This can be a perfectly legitimate and ethical practice but, it is important to know if the jurisdiction in which the advertisements are placed has restrictions or requirements on fee sharing such as full disclosure to the clients, some (contd) Page 18

20 attorney fee sharing Ethical Rules on Attorney Advertising contd & Fee Sharing Get Tested in Rhode Island "joint responsibility" for the cases, etc. It is also crucial to know whether that particular state bar association requires disclaimers for such ads in the event that the referring attorney will not actually be handling the claim from start to finish. David Slepkow is an attorney in Rhode Island and a founding member of the Circle of Legal Trust. He writes on various legal topics of interest for family law, criminal defense and personal injury. His personal injury blogs can be found at the following URLs: and Editor's Hot Tip No Time To Blog!?! Try A Little Content Curation! No matter whether your goal is to rank well in the organic search results, stay fresh in the minds of your potential referral sources and clients or both, every attorney must continue to put out original, relevant content on the internet to be noticed. One of the best tools for doing this is blogging. The problem is that lawyers are not full time marketers and we have to also engage in the practice of law and, hopefully, have some time for family and a personal life. So, what can you do when you don't have an extra 2-3 hours in a week to research, draft, edit and publish a full length (700 to 1000 word) blog post? One solution I have found is what is termed "content curation" or what I call "blogging-lite". If you can find relevant news articles, blogs from other attorneys, information from resource websites and other information that is both interesting and relevant to your practice area, you can provide some, brief commentary or insight about the piece, share it on social media and it has almost as much effectiveness as a full blog post. This can be done on various platforms including your main practice blog, through content curation tools like /www.scoop.it or setting up micro-blogs that are separate from your main practice blog on a platform like: jwww.blogspot.com or jwww.wordpress.com that can focus on a "niche" within your practice area. An example would be to find a recent news article about car safety or accident claims, provide insight from your own perspective as a personal injury lawyer, and publicize the piece through all your social media outlets like your firm Facebook page, your Google plus profile or business page, your Linkedin personal or business profile, etc. Here are some recent illustrations of what I have done: jwww.scoop.it/t/ california-car-accident-and-injury-attorney jvictimslawyercalifornia.blogspot.com/ These types of posts take about 10 to 15 minutes as opposed to several hours for a full blog post. Because you are sharing the content of others and just commenting upon it, you can still get your message out even in a time crunch week! Page 19

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