The Hammer’s braggadocio has been described here, and at Overlawyered. com. This time, his transgressions involve a solicitation letter to a comatose hospital patient and a series of ads filled with swagger and the promise of more swagger. As noted by New York’s 4th Department appellate division, in Matter of James J. Shapiro (April 30, 2004) (emphasis added):
“[W]e conclude that any reasonable attorney would know that a solicitation letter sent to a hospitalized comatose patient in the days immediately following a collision between her automobile and a train would reach the patient and her family at a time when they were unable to exercise reasonable judgment in retaining an attorney. Respondent, who had actual knowledge of the condition of the accident victim, will not be heard to argue that the disciplinary rule required him to be a “mind and body reader” in order to determine whether his solicitation letter could be sent.
“We also agree with the finding of the Referee that the television commercials aired by respondent contained false and misleading statements. The commercials depicted respondent as an experienced, aggressive personal injury lawyer who was prepared to take and had taken personal action on behalf of clients.”
“[R]espondent has not been actively engaged in the practice of law in this State since 1995.”
- “In contrast to the image of respondent depicted in the commercials, respondent has never tried a case to its conclusion and has conducted approximately 10 depositions.”
- We reject the contention of respondent that his television commercials consist of constitutionally protected hyperbole. The statements in the television commercials aired by respondent are false; they do not consist of hyperbole.
David: I meant to post on this one but have been too busy. I will comment here. I did think that a year’s suspension was a little steep. Yes, the Hammer’s ads were misleading – but he also lost (and presumably paid) a $2 million malpractice verdict as a result of one. The article didn’t point to other situations were people were mislead. As for the letter to the comatose patient – yes it is tacky but I could not help think that she was comatose. It’s not as if she was going to be mislead. I would have given a reprimand on this one or a short suspension (3 months) and made Hammer pay a fine that the bar could have used to educate consumers about hiring attorneys or misleading advertising.
Comment by Carolyn Elefant — May 6, 2004 @ 12:21 am
David: I meant to post on this one but have been too busy. I will comment here. I did think that a year’s suspension was a little steep. Yes, the Hammer’s ads were misleading – but he also lost (and presumably paid) a $2 million malpractice verdict as a result of one. The article didn’t point to other situations were people were mislead. As for the letter to the comatose patient – yes it is tacky but I could not help think that she was comatose. It’s not as if she was going to be mislead. I would have given a reprimand on this one or a short suspension (3 months) and made Hammer pay a fine that the bar could have used to educate consumers about hiring attorneys or misleading advertising.
Comment by Carolyn Elefant — May 6, 2004 @ 12:21 am
Hi, Carolyn. Thanks for commenting. I’m not so sure a year is too harsh. (1) The ad campaign ran for years, incessantly on tv (I lived in Rochester while it was airing on every newscast), plus as a full-page ad on the backcover of the local Yellow Pages — so, once the facts came out, I think both the public and the bar needed to see that the matter was taken seriously; (2) a malpractice award was, I presume, paid for by the insurer, which means it raised the premiums of all lawyers; (3) the Court opinion notes several prior disciplinary actions against Jim Shapiro — he’s a serial offender.
Since Shapiro is not even practicing law anymore, and has gotten a nice chunk of money for his Rochester practice, the year suspension is meaningless to Shapiro.
Comment by David Giacalone — May 6, 2004 @ 1:33 am
Hi, Carolyn. Thanks for commenting. I’m not so sure a year is too harsh. (1) The ad campaign ran for years, incessantly on tv (I lived in Rochester while it was airing on every newscast), plus as a full-page ad on the backcover of the local Yellow Pages — so, once the facts came out, I think both the public and the bar needed to see that the matter was taken seriously; (2) a malpractice award was, I presume, paid for by the insurer, which means it raised the premiums of all lawyers; (3) the Court opinion notes several prior disciplinary actions against Jim Shapiro — he’s a serial offender.
Since Shapiro is not even practicing law anymore, and has gotten a nice chunk of money for his Rochester practice, the year suspension is meaningless to Shapiro.
Comment by David Giacalone — May 6, 2004 @ 1:33 am