May It Please the Court!
From Auto Accidents to Agent Orange:
Building a Storefront Law Practice into
America's Largest Suburban Law Firm
Leonard Rivkin
with Jeffrey Silberfeld
Carolina Academic Press
Durham, North Carolina
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The Judicial Inquiry
The Origins of the Judicial Inquiry
Ambulance chaser.
In the 1950's and 1960's, you could not call an attorney a dirtier name. The term refers to the
unethical solicitation of cases by plaintiffs personal injury attorneys. It conjures up images of an
ambulance speeding toward the hospital bearing the dying victim of an automobile accident with a
lawyer racing his car in hot pursuit, holding his business card out the window.
A good example of ambulance chasing occurs in the beginning of the movie "The Verdict,"
where a down and out lawyer played by Paul Newman reads the obituaries, appears at the funeral of
a man he never met who died in an accident, offers his sympathy to the man's widow, and says, while
pressing his business card into her hand, "Let me know if there's anything I can do."
In real life, I have heard stories about lawyers in Nassau County, where I lived and worked,
who supposedly disguised themselves as doctors -- white coats, stethoscopes, charts -- and wandered
around inside a hospital looking for clients. I have also heard stories about lawyers who paid tow
truck operators, automobile repairmen, service station owners, and even doctors to refer clients.
In the late 1950's, there were enough of these stories floating around to prompt the Grievance
Committee of the Nassau County Bar Association to thoroughly examine court records for evidence
of ambulance chasing. Among the Committee's findings: several plaintiffs attorneys in Nassau
County had acquired an extraordinary number of new clients considering their relative lack of
experience. One firm in particular, which included two partners admitted to practice for less than ten
years, had acquired 471 new clients in 1957 and 395 new clients in 1956, compared to none at all in
1955. Another attorney admitted to practice for less than five years had acquired nearly 300 new
clients in 1957; his records indicated that almost all of them were referred to him by "previous
clients." Still another attorney had received dozens of referrals from the same person. And several
attorneys had filed dozens of lawsuits in Nassau County on behalf of persons who resided outside of
the County or where the accident occurred outside of the County.
The Bar Association reported these and other findings in a letter to the Appellate Division of
the New York State Supreme Court, Second Department, the state court with supervisory and
disciplinary authority over attorneys in Nassau County, Suffolk, Queens, and Brooklyn. In that same
letter, the Association characterized the Grievance Committee's findings as "strong evidence of
improper solicitation of negligence cases by some lawyers in our County" and asked the court "to
appoint a Justice of the Supreme Court to conduct an investigation into this matter."
In response to the Bar Association's letter, the Second Department issued a series of orders
establishing the "Judicial Inquiry on Professional Conduct" in Nassau County. The pertinent order,
for purposes of this discussion, was issued on December 19, 1962. In that order, the Second
Department empowered the Judicial Inquiry to investigate ambulance chasing, that is, "any corrupt
and unethical practices...[by plaintiffs personal injury lawyers]...in the solicitation of retainers..." But
the court also directed the Judicial Inquiry to go well beyond ambulance chasing and investigate any
improper and unethical conduct by plaintiffs attorneys "in the subsequent prosecution and disposition
of claims and actions, and in any other matters..." The court designated the Honorable Frank A.
Gulotta, a Justice of the State Supreme Court in Nassau County, to preside over the investigation.'
* * *
I Become a Target
Early in 1963. I was contacted by a man named William F. Hanrahan, a local attorney who
identified himself as an Assistant Counsel to the Judicial Inquiry. Mr. Hanrahan advised me that the
Judicial Inquiry wanted to review some of my plaintiffs personal injury files and asked me to please
produce those files at his office in Garden City.
Mr. Hanrahan's request caught me completely by surprise. I knew that I had done nothing
wrong and that no one had recently filed a complaint against me with the local bar association. In
fact, as of this writing, no one - no unhappy client, no disgruntled adversary, no opposing attorney,
no judge - has ever filed a complaint against me with any court or grievance committee. So after
recovering from my initial shock at hearing Mr. Hanrahan's request, I asked him why the Judicial
Inquiry had decided to investigate me.
The answer was quite simple. Every time a plaintiffs personal injury attorney acquired a new
client, the law required the attorney to file a copy of the retainer agreement in the Second
Department. Mr. Hanrahan told me that the Judicial Inquiry had decided to automatically review the
case files of every attorney who had filed more than 50 retainer agreements in any one year.
In my case, I had filed 37 retainers in 1952, the second full year I had been in practice by
myself in Freeport. In 1953, I filed 39. In 1954, Victor Leffs first full year with me, we hit the
jackpot, filing 50 retainers. In 1955, we filed 91; in 1956, we filed 96.~ From 1957, the year after
Victor died, through 1962, I flied as many as 223 and as few as 121.
Based on these numbers, the Judicial Inquiry ultimately reviewed every one of my case files
opened from 1956 through 1960.
* * *
An Early Setback
I produced my files, in waves, at the Judicial Inquiry's office in Garden City. They would
review a batch, call me down to answer questions about why certain things had been done, where was
the backup for certain allegations, and then they would request more files and call me down to answer
more questions. During our discussions, I willingly told them everything they wanted to know and,
they were courteous and respectful and always seemed satisfied with my explanations. My only
concern during this phase of the investigation was that I was losing valuable time I could otherwise
devote to my practice.
This went on for nearly two and one-half years. Then, in early 1965, Judge Gulotta listened
to some testimony and reviewed some documents relating to my cases. The proceedings before
Judge Gulotta were informal and non-adversarial. Once again, everyone involved was courteous and
respectful. Maybe I wasn't as perceptive as I should have been, but nothing happened during the
course of these proceedings which caused me to be the least bit concerned.
On June 28, 1965, Judge Gulotta submitted a confidential report to the Second Department
which contained his findings and recommendations. Even though I wasn't given a copy, I fully
expected, based upon all that had transpired, that Judge Gulotta's report would quickly bring the
matter to a close.
The Decision
On July 18, 1966, Judge Brennan released a 52 page report which contained his findings of
fact and conclusions of law. If, the next day, someone had nominated me for sainthood, on the
strength of Judge Brennan's report I probably would have been elected in a landslide.
After a meticulous examination of each alleged act of misconduct, Judge Brennan concluded
that I had done nothing improper by approximating my clients' medical expenses:
It is the finding of the undersigned that in the vast majority of cases it is
practically an impossibility for a plaintiffs attorney at the time of serving his
bill of particulars to set forth all medical expenses with exactitude. The
attorney is under a duty to prosecute his case with alacrity. The bill of
particulars is frequently served at a time when the client is still under
treatment. Due to delay or lack of cooperation, it is frequently difficult to
obtain a current or complete medical bill from a physician prior to serving the
bill of particulars, and it is next to impossible to obtain an accurate cost of
medicines and drugs without reliance upon the oral word of the client.
He also determined, with a few minor exceptions not worth noting, that I had done nothing
improper in my handling of my clients' personal injury claims:
A perusal of the various medical reports in this case, in addition to the over-all
familiarity of the undersigned with medical reports in injury cases,
demonstrates conclusively that certain physicians are notoriously cryptic while
others are notoriously verbose. The same considerations demonstrate that
certain doctors are liberal in their diagnoses while others are conservative and,
aside from liberality and conservatism~, there are definitely differing medical
schools of thought upon giving different diagnoses based upon the same
underlying facts and complaints. To require the attorney to parrot an
incomplete, cryptic, conservative report of a treating physician would be to
deprive him of properly presenting his client's case.
I stated earlier in this discussion that "in almost every instance" the charges against me related
to my handling of bills of particulars. What about those instances where the charges involved
something else? I haven't addressed those charges yet for the sake of simplicity and brevity. I will
address them now for the sake of completeness. In some cases, Judge Brennan concluded that the
acts in question were "inadvertent oversights."'9 In others, he concluded that there was no evidence
to support the charges. And in still others, he found that the evidence against me was "woefully
inadequate."
All very well and good, but the best was yet to come. After completing his analysis of each
of the underlying charges, Judge Brennan concluded his report with a brief but glowing evaluation
of my professional reputation, character, and fitness as an attorney. This evaluation was based on the
testimony of people who knew me and knew my work. These witnesses, all of whom appeared
voluntarily, included the Honorable Bernard S. Meyer, who at the time was a Justice of the New
York State Supreme Court and who later served with distinction on the New York State Court of
Appeals; the Honorable Cortland A. Johnson, also a Justice of the New York State Supreme
Court; Peter T. Affatato, Esq., and Frederic Montfort, Esq, both of whom were prominent
attorneys in Nassau County who specialized in personal injury defense work and were frequent
adversaries of mine; and four physicians who were frequently employed by insurance companies
to examine my clients.
After considering the testimony of the above witnesses and all of the other evidence in the
record, Judge Brennan concluded that "the one thing which clearly emerges from this hearing" is that
Leonard Rivkin "is possessed of high professional ability and [an] excellent reputation for character
and morality." He commended my efforts to keep up to date in my practice areas through frequent
participation in continuing legal education; my active involvement in professional associations; my
free representation of indigent defendants; my involvement in charitable and civic activities; and my
war record. He trivialized the charges against me:
The petition in this case.. .is significant not only in what it charges as evidence
of professional misconduct, but also in what it fails to charge. There is no
charge that the respondent ever defrauded a client. There is no charge that he
ever permitted a lay person to obtain signed retainers or aid in the settlement
of cases. There is no charge that he ever submitted false statements pertaining
to loss of time or loss or earnings. There is no charge that he ever loaned or
paid moneys to clients or others to obtain or retain any client, case or action.
There is no charge that any complaint was ever made against the respondent
by any person, client, firm or court.
Judge Brennan's final assessment: "He is a capable, aggressive advocate."
to chapter 5....
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