In today's Law360, reporter Bibeka Shrestha writes on Insurance agents taking Jacoby & Meyers LLP to task over advertising relating to Hurricane Sandy. In her article, she interviews me about my take on the complaint filed with the state court disciplinary committee by the Professional Insurance Agents of New York.
The PIA's complaint stems from an ad that says, "If your business lost business due to the storm your insurance policy should cover it. If it doesn't, your agent made an error. We'll work to correct it." The complaint cites 7.1(a)(2) of the NY RPC...the all-purpose "false, deceptive or misleading"...in regard to the advertisement's content and message.
While I'm far from an expert on insurance law, I have trouble believing that every policy covers business interruption. I can see where agents might take offense to the suggestion that they are at fault, acting improperly or erroneous in every instance where a claim for such coverage is denied. I suggest in the article that a slight tweak from "your agent made an error" to "your agent might have made an error" would likely rectify the situation and not dilute the ad's impact. Of course, I've had my fair share of fights over the years with insurance agents over what is and is not covered in a policy--so I'm not going to be a staunch defender of the industry. I'm talking to you buddy--the guy that claimed I could continue to sleep on a mattress in which a squirrel died and decomposed. "You don't need a new one. We can just get it steam cleaned." Yes, I got a new mattress. And, yes, I utilized my law degree in doing so. I totally get retaining counsel if you feel provisions of a policy are not being carried out.
My perspective comes from that of an ethics attorney that looks at (and creates) lawyer marketing for a living. In the Law360 piece, Marc Mayerson of Orrick Herrington is an insurance attorney and did not see this ad as a serious legal advertising violation. Now, his Orrick biography says he "specializes" in complex insurance-coverage disputes. And the use of "specializes" is a violation of the rules in many states. A "serious" violation? No. Luckily for Orrick, they don't have offices in the sticky states that are vigilant about the "bad" words (specialize, expertise, leaders in, etc.) or a state might have brought it to their attention already.
As many law firms know, some state bars are not particularly interested in whether the violation is serious or not--simply that it is a violation. You know--the whole slippery slope and parade of horribles sort of stuff. What makes this particular situation unique for me is that it is not a state bar bringing the complaint, or a consumer client. It is a third party outside the usual scope of examination. It will be interesting to see how New York's disciplinary committee chooses to address this complaint.
Now I see ads that are far more potentially egregious than this Jacoby & Meyers one--as a resident of Southern New Jersey, I have seen a ton of law firm ads seeking Sandy "victims"--some of which make me wince. Sandy was not a bad guy or gal, but a product of Mother Nature--who may be subject to litigation herself. Shame on you Mother Nature. I hope you have good counsel.