Friday, May 27, 2011

Struggling To Consensus

A divided Wisconsin Supreme Court (so what else is new?) was able to garner four votes holding that an attorney had made a false statement in a 2006 mass mailing. The court was evenly split on other allegations and thus did not sustain findings of misconduct with respect to another mass mailing. All agreed to reject charges that his use of a "35th anniversary sticker" in advertising despite having been in practice setting for 30 years was materially false.

The misconduct was born in rancor toward another lawyer with whom the attorney had been in practice. The two have feuded for years. They compete for personal injury plaintiff work. The competition was interrupted by the other lawyer's fraud conviction and suspension.

Charges based on this post-conviction mailing did not command a majority:

Count 1 of the OLR's complaint relates to a postcard that Attorney...began to include in those direct mail packages beginning in December 2003.  The postcard was entitled "Beware:  You will Probably Get a Letter from a Law Firm Whose Senior Partner Went to Prison on November 28, 2003."  After a greeting line of "Dear Friend," the postcard contained the following text:

Listen to one example of what lawyer advertising has come to:  [named] law firm Senior Partner...went to prison for defrauding approximately 200 of his firm's personal injury clients.  He and his firm still send direct mail advertising to accident victims telling them to hire a lawyer they can really trust.  Lawyers can mail letters and advertise on television without ever having tried a personal injury case.

By separate mailing we have sent you a letter containing an article entitled How to Find a Good Personal Injury Lawyer and information about our firm.  Please take the time to read this article and ask questions before you hire a lawyer.

In a 2006 mailing, the attorney claimed the other lawyer was practicing when he was not. This assertion was deemed false by a majority of justices:

A lawyer with an office at 633 West Wisconsin Avenue in Milwaukee, who pleaded guilty to a felony after defrauding 200 personal injury clients and was sentenced to Federal prison is still practicing law pending his appeal.  His law firm is still sending letters soliciting personal injury cases to people who have been involved in motor vehicle accidents.  The lawyer's partner sends a 28 page brochure telling injury victims they should "Find a lawyer and law firm they can really trust."  What the brochure does not tell you is that the senior partner was convicted of conduct that betrayed the trust and confidence placed in him by his clients.

The other attorney was reinstated in 2007.

The court was unanimous in rejecting a violation in the "anniversary sticker" matter on materiality grounds:

The issue is not whether a potential client or other reader of the anniversary sticker would find the difference between a 35th anniversary sticker and no anniversary sticker material.  Attorney...was entitled at least to communicate in 2004 that the law firm he then owned was 30 years old.  The true question presented is therefore whether a potential client or other reader would have found it to be a material difference if the sticker had read "30th Anniversary" instead of "35th Anniversary."  We agree with Attorney...that no reasonable person would be influenced by a five-year difference between a personal injury law firm that was either 30 years old or 35 years old.  In other words, we do not believe that any reasonable person would have retained Attorney...'s law firm on the belief that it was 35 years old but would not have retained the firm if he/she knew that it was really only 30 years old.  Consequently, because we determine that the anniversary sticker, even if false or misleading, was not material, we conclude that Attorney...'s use of the sticker was not a violation of former [ethics rules].

The court imposed a public reprimand and reduced costs (which also was able to get four votes).

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/05/a-divided-wisconsin-supreme-court-so-what-else-is-new-was-able-to-garner-four-votes-holding-that-an-attorney-had-made-a-fa.html

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