Litigation

Many members of the New York State Trial Lawyer Association Partnership For Justice are abuzz over a letter sent last week to NYSTLA members by outgoing NYSTLA President, Buffalo attorney Richard S. Binko, all but using his position as President to endorse Forge Consulting at the expense of other NYSTLA "Partners". 

Given the opportunity to promote the Partnership for Justice Program, Binko blew it in the opinion of this author.

Forge Consulting has done a masterful job of coming to the obvious conclusion that trial lawyer associations need money and routinely donates large sums of money to state trial lawyer associations such a NYSTLA as a marketing strategy. The company proudly speaks of its donations on its website and has historically done so in marketing materials disseminated to trial lawyers. 

Jar Jar "Binks' " letter follows on the heels of this story which we  published on September 25, 2009 an excerpt of which follows:

"This email  (Download NYSTLA List Serve-Forge) entitled "[Plaintiffs only ]structuring attorney fees" was circulated on September 25, 2009 using a NYSTLA forum/ list serve (copied via a dedicated email address at the New York State Trial Lawyers Association  "NYSTLA") to many others:

Attorney Robert J. Greenstein of Greenstein & Milbauer, LLP states:

"Below is a link to a very informative article written by tax attorney, Robert Wood, regarding structuring attorney fees.  If you?re interested in fee deferral, please contact (name of settlement firm) they are a partner...and we should support them ? they contribute 60K+/yr to NYSTLA"  

Can one help but wondering how often an email tying the size of a insurance agency's financial contribution to the solicitation of insurance on behalf of a licensed agent or licensed agency with NYSTLA occurs? Bear in mind that both the consumers in the structured attorney fee insurance sale AND the beneficiaries of the insurance agency's financial contribution are the association's members".

Points for consideration

A. Following is an excerpt of a published opinion of  the Office of General Counsel New York State Insurance Department dated September 24, 2007:

"Turning to the question about advertising donations to certain not-for-profit organizations like association of trial lawyers, note as an initial matter that in Opinion of General Counsel No. 07-03-07 (March 12, 2007), the Department stated that ?nothing precludes the agent or broker from making charitable contributions so long as the advertising of a charitable contribution as an incentive for new insurance business does not constitute an improper inducement in violation of Insurance Law § 2324.? This statement applies with equal force to life, accident and health insurance policies for which such an inducement would be a violation of Insurance Law § 4224.

The inquiry references an ?affinity program? of an association representing trial lawyers. To participate in the program, a business must sign an agreement that provides for certain advertising-related services by the not-for-profit in exchange for a contribution from the participating business. The member businesses are responsible for providing all advertising content. The association urges its members to make purchases from any business that has joined the affinity program.

If this form of arrangement were strictly an exchange of compensation by an agent or broker for advertising services, the Department would regard the contributions as fees paid for permissible advertising, and not donations to a not-for-profit. In that circumstance, the contributions would not constitute an inducement in violation of Insurance Law § 4224.

However, where, as here, an agent or broker advertises that the agent or broker makes contributions to a not-for-profit organization of concern and interest to potential purchasers of insurance or annuities, such conduct constitutes an illegal inducement to purchase insurance that runs afoul of Insurance Law § 4224. Nor may an agent or broker evade the prohibition set forth in the Insurance Law by enlisting the aid of the not-for-profit organization to do what the agent or broker cannot do lawfully".

B. Richard S. Binko's letter is incredibly shortsighted. in the opinion of this author, his "love affair "with Forge would have been more "romantic"  and more appropriately penned if on his own law firm's letterhead, possibly with a dab of their favorite cologne behind the "dog ear".

C. NYSTLA and any other trial lawyers association for that matter should assess how it dispenses written praise under the moniker of the association, or whether it  is even advisable,. NYSTLA should be more sensitive to others who support their mission, those from who they solicit donations, participation in political fundraisers,  advertising,  sponsorships, auction prizes and other financial consideration to support NYSTLA and its causes.

D  Consider the embarrassment that a number of partners in the settlement section are lawyer members of NYSTLA. They received the Forge endorsement letter directly from Binko. Ooopss!

E. If NYSTLA has a prohibition on using its home domain list serves for solicitation of business then by all means enforce it. Otherwise eventually someone who someone was trying to hide it from is going to find out about it

F. If NYSTLA members think this is matter of sour grapes, think again. Whatever good Forge Consulting does, and they do some good things, this author reminds NYSTLA that in 2005 and 2006 Forge Consulting solicited NYSTLA members on the basis that it was plaintiff exclusive while at the same time its President and CEO and two other principals attested under penalty of perjury about their SUBSTANTIAL defense work in the preceding 3 years so that those individuals could get on the list of brokers who meet the qualifications to do work for the United States Department of Justice. The Forge President ALSO stated that he was plaintiff exclusive to the MATA President on the Legal Talk Network only 3 months after signing one of his two attestations!

Download 2005 Bair DOJ 50.24 Declaration

Download 2006 Bair DOJ 50.24 Declaration

Download Charlie Schell DOJ Declaration 3-1-2005

Download Spooner Phillips DOJ Declaration 3-3-2005

Binko's letter simply makes it clear to other members of the  NYSTLA Partnership for Justice that your transgressions can be papered over by a  series of $60,000 contributions.