Earwigging & Blawgs: Katrina’s Surge Fuels the Quest for Money at the Expense of Ethics

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.


19 thoughts on “Earwigging & Blawgs: Katrina’s Surge Fuels the Quest for Money at the Expense of Ethics”

  1. When I wrote , “Sop’s in a sunshine mood” in my reply to a bellesouth comment yesterday, I had no idea how right I was!

    Your post reminded me of the Allstate – Qui Tam connection. It was one of the companies the Rigsby sisters dropped when they narrowed their claim to State Farm; but, it’s in the Branch claim.

    You don’t think there’s a connection to all the trailer-lawyer trash talk do you?

  2. This is more like the cockroach theory Nowdy. They scatter when the lights are turned on. You betcha Mr Rossmiller hates Qui Tam for a reason. He doesn’t have the balls to come down here and face Judges Senter or Beers straight up like an ethical lawyer such as Richard Trahant or Chip Merlin. He and Tim Balducci are flip sides of the same coin. Something tells me he might just garner an invite to the party here whether he wants one or not.


  3. I worked with David on providing transparency for his readers last year. He gave me every reason he was impartial but not the one reason he was NOT impartial. When I directly questioned him on his blog about his relationship with Allstate he choose to keep that question off his site. He continued to masquerade arround the net as the impartial voice of Katrina law matters. This is how Judges can be exposed to unintended consequences of Mr. Rossmillers tactics. How is a Judge to know he is engaging in ex parte communication with a lawyer when that lawyer takes deliberate steps to hide the true purpose of his communications? IE if you hide your true relationship with the parties involved in litigation from your blog readers how can you provide Judges with the protection they need from breaking the law? Reckless behavior? One Judges need to address so that plantiffs appearing before them can be assured of a fair trial and not have the appearance of improper Judical communications with/from the other party to the matter. This is at the core of the Judical systems duty to the public and needs to be addressed immediately.

  4. Sorry should read—
    This strikes at the core of the Judical systems duty to provide an impartial trial court . I would imagine the Due Process Clause of the 14th Amendment to the U.S. Constitution might trump any lack of established ethical guidelines for lawyers.

    In the United States, federal judges are required to take not just one, but two oaths. The first oath is this:[10]

    I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.

    The second oath that federal judges must take is this:[11]:

    I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

    Federal statute specifically says that the latter oath “does not affect other oaths required by law.”[11]

  5. Rossmiller thinks he is one slick dude. It looks like he is just another slimy slithering snake. Typical lawyer.

  6. I’m not comfortable with such a sweeping indictment of lawyers Gonesouth. Like all professions there are some people that take short cuts. In the case of some such as the subject of this post, I’m reminded of the new twist on the old saying, “Pot meet kettle”.

  7. Very nice SOP. Would that be called earblogging or blogwigging? Thanks for the responce the other day about Senter.

  8. My pleasure Duesouth. The more I follow my nose to that eau de landfil smell emanating from the attacks on the Rigsby sisters and their attorneys, the more I become convinced the story behind the story might be just as big.

    We need a new term to describe the phenomenon. I’d love to see our readers come up with one. Judge Mills was issuing a warning the other day too IMHO. I bet he is not the only Judge that flips his wig on this new way of conducting ex parte communications involving ongoing litigation.


  9. Me first, Sop. I’ve been trying to think of a name for days. Maybe my failure will inspire others.

    All I could come up with was “rubber blogs” a la Pee Wee Herman – “I’m rubber, you’re glue, what bounces off me, sticks on you” or, I guess you could call them “pee wee blogs”.

    Check you later.

  10. Blogwigging— One who attempts to engage in ex parte communications involving ongoing litigation via the internet.

    Example—This is an interesting defense, not particularly persuasive in my opinion, that suggests judges cannot withstand the power of the Internet, and that Snake Farm is behind blog posts on this issue, at least insofar as it wrote a juicy storyline that will get bloggers stoked… David Rossmiller

    Tell us David exactly what is your PURPOSE?
    Why do you post on your blog?

    You claim it is your hobby but your company notes its your JOB. To whom do you market your blog. Who is your master. You know a lawyer cannot have two masters.

    Like “Trailer Lawyers” is funny and catchy, it’s fun to say, it’s funny to think about a bunch of lawyers crammed into a trailer, probably the first trailer they’ve ever been in their lives (“try not to touch anything, you might catch something!”). The phrase is more than words, it gives you an image. But “Snake Farm” is not funny, whether you agree with it or not. (David Rossmiller)

    Here is where we differ David. I find no humor in those who lost everything to Katrina and now have to live in trailors. You know our children are being exposed to toxic formaldehyde and dying in trailors post katrina so the humor is lost on me sir. I hope you would have the common decency to retract your comment about the humor of trailor life post katrina because you are infact wrong. Its not funny sir its deadly.


  11. Another great post, sop! It seems as though there is a need for a name for these types of lawyers who hold themselves out as so objective when in fact they do have a hand in a piece of the pie. Which made me think of Little Jack Horner.

    Little Jack Horner sat in the corner
    Eating his Christmas pie,
    He put in his thumb and pulled out a plum
    And said “What a good boy am I!”

    The story of Jack Horner goes back to the 16th Century when Jack Horner was a steward to the Bishop of Glastonbury. It is rumoured that the Bishop tried to bribe the King. He sent his Steward, Richard Whiting, with a gift of twelve title deeds to various English manorial estates. The deeds were said to have been secreted in a pie (valuables were often hidden in this bizarre fashion to thwart thieves). Whiting ( Little Jack Horner) realised that the bribe would do no good and was said to have stolen the deeds to the manor of Mells (it being the real ‘plum’ of the twelve manors).

    Horner moved into the Manor of Mells. Whether Horner actually stole the deeds to the Manor or was rewarded with them for helping to convict the Bishop of Glastonbury is not known but the Manor of Mells became the property of the Horner family who lived there until the 20th century.

  12. Thank you Belle. So what are you thinking? David Horner-Rossmiller or Little Jack Rossmiller? In my world of financial blogging we call such people wolves in sheeps clothing though some of the attorney’s I’ve been talking with just call it plain unethical.

    Steve your remarks encapsulate the human element that is disregarded in this rush to cash in. That is really the topic for another post.

    We’re well on our way to another record day here at slabbed.


  13. Yes, there seems to be no end to the imagination of these wolves. I picked up this interesting twist on folo.

    As soon as the case went to Judge Lee, Dickie brought in John Griffin Jones, who years earlier had clerked for Lee.

  14. I keep forgetting to post the links which I think I should do, so here is the link for the folo quotes. And here is my source for Little Jack Horner.

  15. Rosswigger might be a good name?

    Ex. in a sentence-

    Good ole Rosswigger is out again looking for work by trying to influence the Judge in the XYZ case…

    ” That is really the topic for another post.”

    Indeed it is a topic for anouther post but alas this subject has already made to the mainstream press. Mike Kunzelman of the AP has done an excellient job covering the trailer issues down here. He was able to get in on the ground floor of the problems and has really forced FEMA to deal with their issues regarding toxic housing.

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