Jacoby & Meyers Goes Down Bigly

Jacoby & Meyers had an idea. If only they could get non-lawyers to put money into its firm for a share of the profits, they could fund expansion. The only itty, bitty problem with that is that it’s ethically impermissible to share legal fees with non-lawyers.

So it brought suit back in 2011, trying to claim its rights were violated. And worse yet, to me, tried to claim it was doing so on my behalf, when they wrote that suit was being brought:

“…on behalf of itself and all others authorized to practice law in the State of New York…”

Blech. Non-attorneys owning a share of law firms is an awful idea, and one that the Second Circuit Court of Appeals shot down last week. The firm tried to lawyer its way around the ethical prohibition by claiming it was a First Amendment violation of its right to freely associate. The problem, of course, is that the right to associate with a lawyer belongs to the client, not to the lawyer trying to finance business expansion.

As Scott Greenfield notes, it wasn’t always this way. It started, sort of, as the People’s Express of law firms:

When Jacoby & Meyers began, it was supposed to be the People’s law firm, solid lawyering at prices regular folks could afford. Some wags might argue that this was merely a marketing stance, as they wanted money as much as any other law firm. When they didn’t get it, they pivoted to a personal injury firm.

The firm having pivoted to personal injury, I’ll rehash what I’ve said before about non-lawyers owning any portion of a firm:  It is an invitation to ambulance chasing. The non-lawyers simply skirt the ethics rules to which they are not accountable, and impermissibly hustle business. The concepts of ownership, solicitation and marketing all become fused into one unaccountable mess.

And what will the lawyers say when the non-lawyers gets found chasing? They would no doubt profess shock (shock!) that such activities were going on under their roof.  “We’re so sorry!  We had no idea!!”

Let’s hope this miserable idea is finally put to bed, for the surest way to degrade the practice of law and diminish the residual respect we still have in some quarters is to introduce non-lawyers into the mix.


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Breslin and Blogging

Breslin on a bar stool, where he belonged, via Daily News and Michael Brennan/ Getty Images

I was reading an obit of the great New York newsman Jimmy Breslin, who died yesterday, and a quote jumped right off the page that I wanted to share. Because it’s about blogging, sort of.

His readers and reputation were clearly that of the everyday working man, and not the hoity toity elites. How did he make his curmudgeonly pieces spring to life?

Before one gets to writing styles – no one needed a dictionary to read a Breslin piece, he being the antithesis of George Will — one needs to address motivation.

As in motivation for writing the piece to begin with. The quote:

Asked in a 2012 interview what he aimed for as a journalist, Breslin replied, “To please a reader: me.”

“I didn’t care about anybody else,” Breslin said. “If I thought it was humorous, if it made me smile, I put it in. I wrote it in the paper and didn’t care what anyone thought.”

I note this because, while no one would ever confuse me with being Breslin, it reflects my own motivation to write this blog for the past 10 years.

With no publisher (and obviously no editor) I write whatever the hell I want. Which is usually on the personal injury law, but I’ve obviously taken a very expansive view of what that subject entails and feel free to get sidetracked if I like.

Writers gotta write. And you can only do it if you have a zest for the subject, be it law, running, or ponies.

If you write for others, instead of yourself, your work will probably suck. That’s what happens when a writer doesn’t have an interest or a passion in the subject. People that write for Google algorithms will always turn out crap.

It’s a pretty good lesson for bloggers.  Write what feels good and what feels right. Then hit the send key and go about your day.

If others like it, great, and if not, well, nothing lost there since you weren’t writing it for them.


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The Case of Del Gallego versus the Plan on the Offset of Disability Benefits

John Del Gallego, an employee, was injured at work and granted permanent partial disability (PPD) workers’ compensation benefits. The Plan, Wells Fargo and Company Long Term Disability Plan and insurer Metropolitan Life Insurance Company (MetLife), offset such award by the amount of John’s long-term disability benefits. The employee filed suit under Employee Retirement Income Security Act (ERISA), 29 USC  § 18, against the Plan and MetLife, saying that the offset was improper. Judge Vince Chhabria of the Northern District of California granted summary judgment to the plan and MetLife, but Del Gallego appealed.

“Other Income Benefits”

The Plan incorporates group certificate of insurance, which was issued by MetLife. It provides long-term disability benefits reduced by other income benefits, which it defines as including workers’ compensation or similar law. It also states that periodic benefits, substitutes and exchanges for periodic benefits will all be accounted.

The court interprets ERISA terms in the popular and ordinary sense, as would a person of average experience and intelligence. The Plan’s plain language provides that a covered worker’s long-term disability benefits will be reduced by periodic compensation benefits and the district court did not err in interpreting the Plan.

Russell versus Bankers Life Case

workers comp benefits and justice for allHowever, Del Gallego argues that other income benefits are only the ones paid for lost wages and includes only temporary disability payments. He relies on the case of Russell versus Bankers Life Company, but this involved a contract defining income from other sources as any payment under Workmen’s Compensation Act providing benefits for loss of time from employment. Since the Plan does not limit other income benefits to loss of time from employment, the case is inapposite.

Del Gallego’s Arguments

Del Gallego also cites the workers’ compensation phrase as ambiguous since a reasonable person would not anticipate that payments for the worker’s future would be offset from the disability insurance benefits. However, Plan’s language unambiguously covers all compensation benefits. The employee also asserts that because the Plan asks for proof of the amount attributable to lost income when a worker receives other income benefits in lump sum and not in monthly payments, reduction should be limited to the portion of the lump sum attributable to the income lost. He cites the provision only applies to lump sum and not to periodic benefits, so the Plan did not offset the lump sum compensation settlement that he received against his Plan benefits.

Del Gallego also asserts that even if his weekly permanent partial disability benefits were for loss of future earning, these are not income. Additionally, the term periodic benefits are ambiguous. Since the Plan has particular language exempting lump sum payments from the setoff, it is impossible to interpret periodic payments as lump sum payment.

The Panel’s Decision

The Ninth Circuit US Court of Appeals panel rejected the arguments of John Del Gallego that partial permanents disability benefits were not income and that periodic benefits is facially ambiguous. Del Gallego was represented by Laurence F. Padway while Rebecca Ann Hull represented the Plan and MetLife.

If you are in need of a personal injury attorney in Philadelphia, Pa, then you should call Edelstein, Martin & Nelson at http://www.philadelphiadisabilityinsurancelawyer.com/ or you can call them at the following number (215) 731-9900 and schedule an appointment to sit down and discuss your case.

The post The Case of Del Gallego versus the Plan on the Offset of Disability Benefits appeared first on Philadelphia Disability Insurance Lawyer.

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Good Doggie, Bad Owner, No Lawsuit

Meet Tucker. He’s mine. Does he look dangerous to you?

When last we visited New York’s dog law, it was really good for dog owners, but not so good for those that were injured by their negligence. New York, you see, is an outlier to the vast majority of states. While in most states you can successfully sue the owner for the owner’s negligence, in New York, you have to blame the dog.

And by blame the dog, I mean show a previously known vicious propensity. You know the old adage about each dog getting one bite?  That’s where it comes from, since the bite gives notice to the owner of an, ahem, issue.

If you have a good dog, on the other hand, but a dumb owner that lets the pooch run loose in places pooches shouldn’t be running loose, you can’t sue. At least not successfully. Owners have absolute immunity for their own negligence.

Yeah, that’s a dumb rule. But it was nevertheless reaffirmed two years ago by New York’s top court in Doerr v. Goldsmith when a dog owner called for his dog to come, and the dog obeyed, as it ran across the street in Central Park into the path of a bicyclist.

New York’s Appellate Division, First Department (we have four departments of this intermediary appeals court) thought that suit should go forward. Our top court said otherwise in reversing, telling the injured plaintiff, too fuckin’ bad. That’s a legal phrase of art that lawyers must sometimes use to explain things to clients.

Much unhappiness around, unless you think people should have immunity for their negligent conduct.

Today, the First Department does it again, once again challenging the illogical view of the Court of Appeals. In Scavetta v. Wechsler a dog owner tied his 35-pound dog to an unsecured 5-pound dog rack.

Owner went toward store. Dog followed. Dog heard scraping and screeching of dog rack he was towing, freaked out, and bolted. Rack clobbers Good Samaritan trying to help panicked dog.

So this is another case of Good Doggie, Bad Owner. (OK, maybe negligent owner is the better way to write that, but it doesn’t have quite the same rhythm, does it?)

Can you bring suit solely based on the conduct of the dog owner? Indeed, the plaintiff actually stipulated to the fact that the dog did nothing vicious. This was strictly about owner negligence.

The First Department gets right to it in just the second paragraph. After first stating that it is constrained to follow precedent from Bard v. Jahnke (“when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule), a unanimous panel of the court goes on to decry the sad state of New York law and virtually begging the Court of Appeals to reconsider its unsound policy:

At the same time, we take this opportunity to acknowledge plaintiffs’ persuasive argument that the Bard rule may be neither prudent law nor prudent policy. As this case illustrates, a plaintiff cannot recover for injuries caused by a dog that has not demonstrated vicious propensities, even when the injuries are proximately caused by the owner’s negligent conduct in controlling or failing to control the dog. This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the State of New York without recourse.

Yeah, I added that emphasis. Immunity. That is what the Court of Appeals has continued to grant for negligent conduct, and it runs counter not only to the rule from the Restatement (Second) of Torts (§ 518 permitting liability where an owner of a domestic animal is negligent in failing to prevent harm caused by the animal), but counter to the rule in the vast majority of states.

The court explained its logic, writing that:

In these circumstances, negligence liability would be in keeping with the principles of fundamental fairness, responsibility for one’s actions, and societal expectations (see Doerr, 25 NY3d at 1148 [Fahey, J., dissenting]) — assuming a jury would deem unreasonable defendant’s failure to ensure that the rack was secured before he tied his dog to it. It is not unreasonable to expect dog owners to restrain their dogs in public unless unleashing them is safe or specifically permitted at certain times and locations, as evidenced by local leash laws.

I hate block quotes, but this analysis by the First Department is the essence of what our top court has done:

Under the current rule articulated by the Court of Appeals, it appears that pet owners would be permitted to act in any number of objectively unreasonable ways when supervising their nonvicious pets, because New York law does not place upon them a duty to observe any standard of care …It seems…that under the law of New York at present, permitting a domestic pet that has not displayed vicious propensities to run at large under any circumstances – even when doing so would be clearly dangerous – would never give rise to a claim sounding in negligence. We find this to be most unsatisfactory as a matter of public policy and would recognize a cause of action for negligence in appropriate circumstances.

Let’s hope the plaintiff takes an appeal, and let’s hope that this anachronism of immunity that the court has bequeathed upon animal owners (including me, as the owner of the pictured pooch above) is laid to rest. Six feet under.


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