Here's an interesting ethics question that came up in our practice. We have gotten a number of cases dismissed on "geographic jurisdiction" under Article 20 of the CPL. In short, our client is charged in a town, but it turns out that the location where the incident occurred is clearly in a different town.
When it's a simple traffic ticket the police are unlikely to reissue the ticket. It's just too much trouble to go and find the defendant and serve them again for something so minor.
What happens if your client flees the jurisdiction before any charges are refiled or served upon him? With a felony the client risks extradition, and that's no fun. With a misdemeanor, extradition is pretty unlikely.
What do the ethical rules say about advising your client on fleeing the jurisdiction? I don't see a clear answer.
The typical case where this arises is where the defendant lives here but has little or no ties to New York and can easily move back to their home state. If the defendant leaves and nothing happens after a couple years, there is a good chance of a speedy trial dismissal and the statute of limitations will have passed (on a misdemeanor).
An attorney should advise the client of all the consequences that might arise from any course of action. Where fleeing the jurisdiction has mostly positive consequences, it would seem that an attorney might even recommend it.
The problem is that this leaves a bad taste in the mouth, at least for some people.
So what do readers of the Albany Lawyer blog have to say? Please post your comments.
Showing posts with label attorney ethics. Show all posts
Showing posts with label attorney ethics. Show all posts
Tuesday, January 06, 2009
Monday, October 08, 2007
Follow up on unsolicited attorney mailings
In late July I did a post describing a letter that was mailed to a client of mine. This is known as an unsolicited attorney mailing. I think, but am not sure, that the powers that be in our profession decided there is nothing wrong with such a mailing. Nevertheless, I have no plans to mimic it.
Thursday, July 26, 2007
Unsolicited attorney mailings to prospective clients
One of my clients got a letter from a local lawyer that I thought was inappropriate. Images of the letter (with information about both the lawyer and the client whited out) are at the bottom (click on them to see them enlarged). Let's take a look and see what's wrong with this:
1. Notice the enlarged fonts, boldface, and underlining. Maybe it's just me, but lawyers shouldn't shout. The only time I think we use bold in a letter is when we tell our clients that courts do not accept personal checks, and that they need to send a money order.
2. This is one of the big problems -- How did this lawyer know my client had a ticket? We've heard from one source that this lawyer does FOIL requests on all the local courts, but I don't know that for certain. Disciplinary Rule 1200-8(h) requires that he was supposed to disclose how he obtained my client's identity and learned of his legal need. It's not in the letter. I sent a letter asking for this information and he hasn't responded to that either.
3. Another big problem is the substantial exaggerations. The biggest one is where he says that if you plead guilty to a 6-point speeding ticket the total cost will be $3800. The $3800 includes:
a: $355 max fine
-- The fine range is $90-300 and there is a $55 surcharge. Technically correct, but he leaves out the minimum.
b: $300 DMV Assessment
-- This one is dead-on -- unless the client already has points.
c: $3145 insurance hike (estimated over 3 years)
-- Um ... where on earth did he get this figure? I'm guessing my client, a really nice retired fellow, pays about $500 a year now on his insurance. If his rates got bumped at all, he'd probably be looking at a 30% increase for 3 years, for a total increase of about $450. I'm guessing too, but I'll bet my guess is a lot better, and it's not an unreasonable scare tactic.
The funniest thing is where he estimates with a reduction to a speed of 75 in a 65. Notice for fines he now has $150 with (+surcharge if applicable). I don't know where the surcharge is inapplicable, and you have to wonder why it's left out here but included in the plead guilty estimate. Funnier still is his estimate of the insurance hike at $1550 for 3 years. Under Insurance Law 2335, your rates cannot be raised for a speed of 15 mph or less over the limit. The insurance hike for this reduction is zero.
I'm eager to see comments on this. Please fire away!
1. Notice the enlarged fonts, boldface, and underlining. Maybe it's just me, but lawyers shouldn't shout. The only time I think we use bold in a letter is when we tell our clients that courts do not accept personal checks, and that they need to send a money order.
2. This is one of the big problems -- How did this lawyer know my client had a ticket? We've heard from one source that this lawyer does FOIL requests on all the local courts, but I don't know that for certain. Disciplinary Rule 1200-8(h) requires that he was supposed to disclose how he obtained my client's identity and learned of his legal need. It's not in the letter. I sent a letter asking for this information and he hasn't responded to that either.
3. Another big problem is the substantial exaggerations. The biggest one is where he says that if you plead guilty to a 6-point speeding ticket the total cost will be $3800. The $3800 includes:
a: $355 max fine
-- The fine range is $90-300 and there is a $55 surcharge. Technically correct, but he leaves out the minimum.
b: $300 DMV Assessment
-- This one is dead-on -- unless the client already has points.
c: $3145 insurance hike (estimated over 3 years)
-- Um ... where on earth did he get this figure? I'm guessing my client, a really nice retired fellow, pays about $500 a year now on his insurance. If his rates got bumped at all, he'd probably be looking at a 30% increase for 3 years, for a total increase of about $450. I'm guessing too, but I'll bet my guess is a lot better, and it's not an unreasonable scare tactic.
The funniest thing is where he estimates with a reduction to a speed of 75 in a 65. Notice for fines he now has $150 with (+surcharge if applicable). I don't know where the surcharge is inapplicable, and you have to wonder why it's left out here but included in the plead guilty estimate. Funnier still is his estimate of the insurance hike at $1550 for 3 years. Under Insurance Law 2335, your rates cannot be raised for a speed of 15 mph or less over the limit. The insurance hike for this reduction is zero.
I'm eager to see comments on this. Please fire away!
Thursday, June 07, 2007
Even more on attorney advertising and traffic court
Going back to my recent post on an unethical "attorney" website, I decided to do some more investigation.
I faxed a note to the site's fax number saying that I had gotten a ticket in Westchester County for 96 in a 65, and that I would like a quote.
I got a fax reply from "Gailia Walters," from "New York Traffic Tickets." The fax further indicates their slogan as "The Traffic Ticket Specialists."
Ms. Walters said:
Thank you for selecting our legal services. Here is your quote for your 8 point traffic ticket case. After handling over 50,000 traffic ticket cases over the last 15 years we are confident to inform you that we should be able to eliminate or reduce your points to prevent your insurance from going up. Our fee for this case is $800.00.
To proceed with this case please fax a copy of your traffic ticket to 1 866 899 4713 with your contact info so we can send you the retainer agreeement, and the credit card form. (Please let us know if you would like us to email or fax these forms to you)
If you have any further questions, please do not hesitate to call.
Well, I did have a further question, so I called. Ms. Walters, if that is her real name, answered the phone. I asked her for their firm name and she did not give me a sensible answer. Then I asked which lawyer would be handling my case. She gave me a name.
Patrick McLoughlin. She gave me his phone number: 716-536-0589.
I looked him up. He has a website/page at www-dot-defendingwnydrivers -dot- com.
He seems like a decent fellow, but he does not look like Ed Meese, James Baker, or Michael Deaver (see my previous post).
I also like how he's based in Rochester, and he handles "Criminal Defense Starting at $185"). Most likely Ms. Walters misunderstood when I said Westchester and thought I meant Rochester.
I faxed a note to the site's fax number saying that I had gotten a ticket in Westchester County for 96 in a 65, and that I would like a quote.
I got a fax reply from "Gailia Walters," from "New York Traffic Tickets." The fax further indicates their slogan as "The Traffic Ticket Specialists."
Ms. Walters said:
Thank you for selecting our legal services. Here is your quote for your 8 point traffic ticket case. After handling over 50,000 traffic ticket cases over the last 15 years we are confident to inform you that we should be able to eliminate or reduce your points to prevent your insurance from going up. Our fee for this case is $800.00.
To proceed with this case please fax a copy of your traffic ticket to 1 866 899 4713 with your contact info so we can send you the retainer agreeement, and the credit card form. (Please let us know if you would like us to email or fax these forms to you)
If you have any further questions, please do not hesitate to call.
Well, I did have a further question, so I called. Ms. Walters, if that is her real name, answered the phone. I asked her for their firm name and she did not give me a sensible answer. Then I asked which lawyer would be handling my case. She gave me a name.
Patrick McLoughlin. She gave me his phone number: 716-536-0589.
I looked him up. He has a website/page at www-dot-defendingwnydrivers -dot- com.
He seems like a decent fellow, but he does not look like Ed Meese, James Baker, or Michael Deaver (see my previous post).
I also like how he's based in Rochester, and he handles "Criminal Defense Starting at $185"). Most likely Ms. Walters misunderstood when I said Westchester and thought I meant Rochester.
Friday, June 01, 2007
Criminal Defense: No Guarantees
Prospective clients frequently ask me if I guarantee results. I do not. I get paid for the work that I do, and I do the same quality work for my clients whether we win or lose, and whether we get a good deal or a bad deal.
There are lawyers out there who do "guarantee" results. For example, in Syracuse the firm Sommer & Sommer (website is trafficticketdwi -dot- com) says on their website in bold red: "you will not pay a fee unless we reduce your points and acheive [sic] our goals."
Yes, they do have the word "achieve" misspelled on their site. More important, they offer a guarantee. The problem is that this is effectively a contingent fee arrangement (payment of the fee is contingent on achieving a certain result), and contingent fees are generally prohibited (DR 5-103(A)(2)) and are specifically prohibited in criminal cases (DR 2-106(C)(1)). And while one might argue regarding DR 2-106 that traffic cases are not criminal, the listing of things this covers on their firm site includes "Driving on Suspended License," "Suspended Registration" and "No Insurance," all of which are misdemeanors in New York. For those who don't know, misdemeanors are crimes.
There are some fundamental ethical problems with an attorney making this kind of guarantee. Suppose you're in Court and are offered a deal for your client. The deal is not good enough to satisfy your guarantee, but is better than the likely outcome. The attorney may be inclined to do a trial against the client's interest in order to have some chance of getting a fee. While few attorneys really think this way in the middle of handling a case, we are supposed to avoid creating this kind of conflict in our work.
Another problem is the perception this may create that we have the power to make guarantees. People may think we have inside connections with prosecutors and courts. Perhaps that is true for some lawyers, but that is not something one should advertise. It creates an appearance of impropriety.
There are other problems with it, I'm sure, but my brain is dead today from lack of sleep, so you're all on your own to figure out the other issues. :-)
There are lawyers out there who do "guarantee" results. For example, in Syracuse the firm Sommer & Sommer (website is trafficticketdwi -dot- com) says on their website in bold red: "you will not pay a fee unless we reduce your points and acheive [sic] our goals."
Yes, they do have the word "achieve" misspelled on their site. More important, they offer a guarantee. The problem is that this is effectively a contingent fee arrangement (payment of the fee is contingent on achieving a certain result), and contingent fees are generally prohibited (DR 5-103(A)(2)) and are specifically prohibited in criminal cases (DR 2-106(C)(1)). And while one might argue regarding DR 2-106 that traffic cases are not criminal, the listing of things this covers on their firm site includes "Driving on Suspended License," "Suspended Registration" and "No Insurance," all of which are misdemeanors in New York. For those who don't know, misdemeanors are crimes.
There are some fundamental ethical problems with an attorney making this kind of guarantee. Suppose you're in Court and are offered a deal for your client. The deal is not good enough to satisfy your guarantee, but is better than the likely outcome. The attorney may be inclined to do a trial against the client's interest in order to have some chance of getting a fee. While few attorneys really think this way in the middle of handling a case, we are supposed to avoid creating this kind of conflict in our work.
Another problem is the perception this may create that we have the power to make guarantees. People may think we have inside connections with prosecutors and courts. Perhaps that is true for some lawyers, but that is not something one should advertise. It creates an appearance of impropriety.
There are other problems with it, I'm sure, but my brain is dead today from lack of sleep, so you're all on your own to figure out the other issues. :-)
Saturday, October 14, 2006
Attorney websites and ethics
Back in July I did a post about the proposed rules for Attorney Advertising and how they affect the web. I did another post about it these ethical issues in attorney advertising in June.
So I was reading an e-mail today and noticed a sponsored link for New Jersey Traffic Tickets - the website is www -dot- NewJerseyTrafficTickets -dot- us. I use the -dot- instead of . to prevent them from getting an inbound link from this blog which might help their site's ranking. While perusing their site I ended up on another one of their sites, newyorktraffictickets -dot- us. I still haven't figured out how I got to the second site.
Anyway, these sites present ethical issues that should be dealt with regardless of the new rules. For example, the sites do not identify the names of the lawyers or law firms behind them. The sites give an address in Woodbridge NJ, but in a search I was unable to find any law firm in the listed suite (there are 2 or 3 firms in the building, but apparently not in that suite. They claim to have a team of 7 lawyers. Are all 7 lawyers admitted in both New York and New Jersey?
The page on New York DWI cases is troubling. First, they claim that: "Most criminal lawyers charge between $5000 to $10000 to defend you in court for an DUI/DWI case." I don't know how they know that. I charge $1000 up front for a first DWI offense if we're making a deal for you. I think I'm a little more expensive than most lawyers around here. The best lawyers tend to charge a little more and also tend to deliver better service. I'm told that one lawyer in the area charges $7500 up front even if it's just to make the deal. Of course they claim to have "renowned experts" though they don't name them. I would think if you were trying to sell yourself and you had renowned experts on your team, you'd name them since their renowned expert status should be demonstrable and persuasive to prospective clients.
Next they assert: "In addition to these charges, attorneys add on hundreds, or even thousands of dollars in miscellaneous (hidden) charges including postage, long distance, administrative, fax, consultation, secretarial and many more ridiculous charges. We believe this is unfair and even unethical to clients, which is why we are fully up front with all our clients."
I don't add on charges like this. I doubt many other attorneys do. Where do they get this from? Here they are disparaging other lawyers with baseless accusations, accusing them of unfair and unethical practices. I'm pretty sure that's unethical under the existing rules.
They then claim that they are able to keep their fees so low because they have such a large volume of cases. Earlier on the same page they claim that they're better than other lawyers because they have a low caseload, and that other lawyers won't do as good of a job because the other lawyers have too many cases. Hmm.
They also claim that they only accept DUI/DWI cases. The site titles include the term "traffic tickets" and the menu includes traffic tickets, speeding tickets, reckless driving, no insurance, and suspended license. I understand these fields are related, but they are not DUI/DWI cases.
They also describe how the law works, and what they do for their clients. This may be the most troubling section of all. First they refer to DWIs and DUIs as "major criminal offenses" in New York. The term DUI isn't really even a New York term. DWAI, the lowest level DWI offense, isn't even a crime. It's a violation. A first-time DWI charge is a misdemeanor, not even a felony and cannot be considered a "major" criminal offense even though it is a crime. In most of my cases I have been able to get this reduced to the DWAI violation. There are significant consequences, but jail time is quite rare.
They then say that there are no plea bargains in New York on DWI cases. This is mostly false. Even in situations where the prosecutor is not willing to reduce the charge to a lower offense, plea bargains still exist and typically reduce the consequences, such as avoiding jail time or probation, or at least lower fines.
According to a "whois" check, the site is owned by Peter Kim, 130 Church Street, Suite 280, New York, NY 10007. The address is a Copy Center, so the Suite is actually just a mailbox. I can't tell if Mr. Kim is a lawyer or not. There are two lawyers named Peter Kim in New York, but neither is listed at this address. A search on the e-mail address from the whois suggests that the relevant Mr. Kim actually lives in Toronto and works for or owns a company called Internet Solutions Network: "Internet Solutions Network is an Internet Marketing Company that specializes in meeting the online needs of corporations and businesses by implementing profitable Internet marketing strategies."
Mr. Kim also apparently owns a toronto traffic ticket website and may have another address at 10 Yonge Street in Toronto, but that's probably just another box.
I strongly suspect these sites violate the existing ethical rules in New York, New Jersey and maybe even Ontario. But they're still up on the web. It doesn't matter what rules New York chooses if the rules are not going to be enforced. And this points to another problem. If Mr. Kim is not a lawyer in New York, then he cannot be regulated by the New York courts. If New York State actually cracks down on lawyer websites with the new rules, then consumers searching the web will be stuck with people like Mr. Kim as their leading sources of information about law.
So I was reading an e-mail today and noticed a sponsored link for New Jersey Traffic Tickets - the website is www -dot- NewJerseyTrafficTickets -dot- us. I use the -dot- instead of . to prevent them from getting an inbound link from this blog which might help their site's ranking. While perusing their site I ended up on another one of their sites, newyorktraffictickets -dot- us. I still haven't figured out how I got to the second site.
Anyway, these sites present ethical issues that should be dealt with regardless of the new rules. For example, the sites do not identify the names of the lawyers or law firms behind them. The sites give an address in Woodbridge NJ, but in a search I was unable to find any law firm in the listed suite (there are 2 or 3 firms in the building, but apparently not in that suite. They claim to have a team of 7 lawyers. Are all 7 lawyers admitted in both New York and New Jersey?
The page on New York DWI cases is troubling. First, they claim that: "Most criminal lawyers charge between $5000 to $10000 to defend you in court for an DUI/DWI case." I don't know how they know that. I charge $1000 up front for a first DWI offense if we're making a deal for you. I think I'm a little more expensive than most lawyers around here. The best lawyers tend to charge a little more and also tend to deliver better service. I'm told that one lawyer in the area charges $7500 up front even if it's just to make the deal. Of course they claim to have "renowned experts" though they don't name them. I would think if you were trying to sell yourself and you had renowned experts on your team, you'd name them since their renowned expert status should be demonstrable and persuasive to prospective clients.
Next they assert: "In addition to these charges, attorneys add on hundreds, or even thousands of dollars in miscellaneous (hidden) charges including postage, long distance, administrative, fax, consultation, secretarial and many more ridiculous charges. We believe this is unfair and even unethical to clients, which is why we are fully up front with all our clients."
I don't add on charges like this. I doubt many other attorneys do. Where do they get this from? Here they are disparaging other lawyers with baseless accusations, accusing them of unfair and unethical practices. I'm pretty sure that's unethical under the existing rules.
They then claim that they are able to keep their fees so low because they have such a large volume of cases. Earlier on the same page they claim that they're better than other lawyers because they have a low caseload, and that other lawyers won't do as good of a job because the other lawyers have too many cases. Hmm.
They also claim that they only accept DUI/DWI cases. The site titles include the term "traffic tickets" and the menu includes traffic tickets, speeding tickets, reckless driving, no insurance, and suspended license. I understand these fields are related, but they are not DUI/DWI cases.
They also describe how the law works, and what they do for their clients. This may be the most troubling section of all. First they refer to DWIs and DUIs as "major criminal offenses" in New York. The term DUI isn't really even a New York term. DWAI, the lowest level DWI offense, isn't even a crime. It's a violation. A first-time DWI charge is a misdemeanor, not even a felony and cannot be considered a "major" criminal offense even though it is a crime. In most of my cases I have been able to get this reduced to the DWAI violation. There are significant consequences, but jail time is quite rare.
They then say that there are no plea bargains in New York on DWI cases. This is mostly false. Even in situations where the prosecutor is not willing to reduce the charge to a lower offense, plea bargains still exist and typically reduce the consequences, such as avoiding jail time or probation, or at least lower fines.
According to a "whois" check, the site is owned by Peter Kim, 130 Church Street, Suite 280, New York, NY 10007. The address is a Copy Center, so the Suite is actually just a mailbox. I can't tell if Mr. Kim is a lawyer or not. There are two lawyers named Peter Kim in New York, but neither is listed at this address. A search on the e-mail address from the whois suggests that the relevant Mr. Kim actually lives in Toronto and works for or owns a company called Internet Solutions Network: "Internet Solutions Network is an Internet Marketing Company that specializes in meeting the online needs of corporations and businesses by implementing profitable Internet marketing strategies."
Mr. Kim also apparently owns a toronto traffic ticket website and may have another address at 10 Yonge Street in Toronto, but that's probably just another box.
I strongly suspect these sites violate the existing ethical rules in New York, New Jersey and maybe even Ontario. But they're still up on the web. It doesn't matter what rules New York chooses if the rules are not going to be enforced. And this points to another problem. If Mr. Kim is not a lawyer in New York, then he cannot be regulated by the New York courts. If New York State actually cracks down on lawyer websites with the new rules, then consumers searching the web will be stuck with people like Mr. Kim as their leading sources of information about law.
Subscribe to:
Posts (Atom)