Steve dropped by slabbed last night with a particularly insightful comment on the ethical implications of the footnote found in the rebuttal memo submitted by Graves Bartle & Marcus and Bartimus Fricltleton Robertson & Gorny, the law firms that represent the insurance whistle blowers Cori and Kerri Rigsby in their False Claims Act fight against State Farm.
I would note that although it would be hard to prove in some cases one notable blogger with a day job has asserted the use of company bloggs (sic) for the purposes of generating business for the firm. Would that make blogging akin to advertising? If so what rules do lawyers have in relation to their blogs? Has anyone already crossed the line of ethics? This would probably be a new area for the legal profession to examine but one which will have to be dealt with by the profession. Perhaps the legacy of Rossmiller and NMC will be the development of internet blogging guidelines for the profession. Is it indeed advertising for new clients like Rossmiller asserts or is it something else?
Then Bellesouth stopped by today with a comment that included an excerpt of a news article that appeared today in the student newspaper the Daily Mississippian made by Judge Mills in yesterday’s ethic’s panel held yesterday at Ole Miss on the topic of ex parte communications. More on that in a bit.
That reminded me of some old links I had saved on David Rossmiller, moderator of the Insurance Coverage blog.
“David Rossmiller loves to tell stories, a passion that stems from his upbringing in rural North Dakota that was honed considerably over a decade as an investigative reporter in Arizona.
It’s a skill the Dunn Carney Allen Higgins & Tongue LLP attorney uses to craft mercifully colorful commentary on his insurance law blog, insurancecoverageblog.com.
In doing so, Rossmiller authors one of the most well-read legal blogs — what some refer to as “blawgs” — from Oregon……
Though Rossmiller doesn’t blog about his clients or his work, he frequently weighs in on topics like Hurricane Katrina litigation and other insurance issues on a national level. He also provides links to other blogs and articles he’s read that raise legal questions and spark debate…….”
Wait a second. He doesn’t blog about his clients? I was reminded of a comment left here by Richard Trahant attorney for the Weiss family from Slidell that successfully sued Allstate to the tune of $2.8 million dollars in my post about Rebecca Mowbray winning the Enterprise Award which recognized excellence in business journalism.
Right on. Rossmiller is very smart and actually is affecting some of this litigation without being enrolled in a single Katrina case, to my knowledge. His article on the anti-concurrent cause clause is very good.
That having been said, he is very much aligned with the industry, even though he defensively tries to paint himself as even-handed. Rossmiller is like a prize fight junkie. He watches Katrina cases, but he never steps in the ring. It’s all theoretical and just a surface analysis. He really has no idea about what’s going on in the day to day war into which these Katrina cases have evolved.
Something clicked as I then remembered that Allstate is a client of Mr Rossmiller’s law firm firm Dunn Carney in Portland Oregon. In fact, Mr Rossmiller was a prolific law blogger who actually claimed to be impartial on the topic of client Allstate’s Weiss litigation. You can find those posts here, here, here, here, here, here, here, here, here, here, and here. Hear Here Mr Rossmiller. 😉
To be fair, many of his posts simply referenced news articles; but, in Mr Rossmiller’s magnum opus on where the jury went wrong in Weiss, me thinks I detect the modern day cyber equivalent of ye ole earwigging.
However, my favorite Rossmiller missive was on double dipping insurance policies, a favorite topic of his while that very topic was being litigated in Weiss. Let’s look back and join him while he gives himself a well deserved pat on the back for a job well done:
I made the call repeatedly over the last week: you can’t double-dip on multiple indemnity insurance policies. The purpose of indemnity insurance is to make you whole, to restore the value of what is insured, not function as a profit-making enterprise. So it’s no surprise to me that, in this story by Mike Kunzelman of the Associated Press on the Weiss v. Allstate case in Louisiana, the judge will instruct the jury to take into account that the policyholders have already received $350,000 in flood insurance money
Sarah Vance is a respected Judge over in New Orleans. I’ve had the pleasure of seeing her at work on the bench. I wonder if she reads law blogs? Surely Judge Senter must, he referenced Mr Rossmiller on page 7 in the Dickinson decision.
The meticulous analysis by David Rossmiller concerning the history, purpose, and meaning of the anti-concurrent cause provision, published at New Appleman on Insurance: Critical Issues in Insurance Law , makes it clear that an anti-concurrent cause provision has no application in a situation (such as Hurricane Katrina) where two distinct forces (wind and water) act separately and sequentially to cause different damage to insured property.
So this has become very interesting and topical. Earwigging a judge has become a favorite topic here in Mississippi with the Judicial Bribery Scandal and ongoing investigation into Judicial corruption. I’m not a lawyer but I know where to find an entire gaggle of them – over at the Folo blog where earwigging a judge was discussed at length for some perspective.
To set it up Justus left a lengthy comment about Ex Parte communications with a judge and the rules in Mississippi. The premise is straight forward, talking to the judge about a case is a no no. Life is full of shades of grey, however, as Justus pointed out.
NMC, gives another perspective in the next comment and I quote:
Justus wrote after a long comment about ex parte contact: “That is an amorphous standard, changing from lawyer to lawyer – which is partly why the MS legal system is where it is today.”
Is this complexity peculiar to Mississippi?
So this brings us to that story in the Daily Mississippian on yesterday’s 5-star judicial panel on the subject of earwigging. Included was the man who blew the whistle on Tim Balducci for whispering sweet-Scruggs-nothings into his ear, Judge Henry Lackey.
However, it was not Judge Lackey’s remarks that caught my attention, rather it was those of Federal Judge Mills, currently known as the “Beef Plant Judge,” that caught my eye.
Mills discussed an alternative type of “earwigging” through internet blogs.
Mills said if he doesn’t read the comments on a certain blog, someone in his office is bound to print it out and leave a copy on his desk.
“I know all of these comments are not written by uninterested third parties,” Mills said.
Freeland said he does not comment about his cases to avoid any appearance of impropriety.
The blog he writes for, www.folo.us, is covering the Mississippi beef plant case.
Freeland is a defense attorney for the case; however, he said he does not comment or write about his cases.
Mills said some of the comments are intended to influence judges.
“That constitutes “ex parte” contact and should be addressed by the American Bar Association.”
It would seem to me this concept is very important in this age of technology. Blawging ongoing cases involving a paying client smells worse that the chicken and pork belly carcasses from the Port of Gulfport that littered my property for months after Hurricane Katrina.
Judge Mills is a respected Federal Judge and I think there can be no second guessing when he thinks earwigging has been updated for this new fangled critter called the internet and blawgs.
Of course, Mr Rossmiller himself passed judgment on the earwigging ways of Dickie Scruggs and said this about defending legal ethics:
if we can’t defend the institutions that protect us, we are not worthy of survival.
Indeed, Mr Rossmiller, this subject is one most worthy of detailed examination. Could it be the quest for new sources of billable hours clouded the better judgment of your partners at Dunn Carney?
Steve, do you think the Oregon bar will be reading this? My thanks to you, friend, for helping me research this post.