Indiana's Anti-Blacklisting Statute - The 121 Year-old Law I Didn't Know Existed

While I was researching something else, I stumbled upon Indiana's Anti-Blacklisting Statute, Indiana Code 22-6-3-2 which states as follows:

§ 22-5-3-2. Railroads; damages; exemplary damages If any railway company or any other company, partnership, limited liability company, or corporation in this state shall authorize, allow or permit any of its or their agents to black-list any discharged employees, or attempt by words or writing, or any other means whatever, to prevent such discharged employee, or any employee who may have voluntarily left said company's service, from obtaining employment with any other person, or company, said company shall be liable to such employee in such sum as will fully compensate him, to which may be added exemplary damages.

The text of this statute suggests that, except in employment by sole owners, an employer may not attempt to prevent a former employee from gaining employment with any other employer.  Statutes like this are no doubt behind the practices of some firms asked for references to only provide dates of employment to those seeking references.  This statute provides for compensatory damages and "exemplary damages" - essentially another term for punitive damages.

Note that Section 1 of the same law provides immunity to employers who provide factual information including but not limited to the reason for the discharge unless the employer knows the information was false.  That section also gives the employee the right to receive a copy of any information provided to the enquiring potential employer.

(c)

Upon written request by the prospective employee, the prospective employer will provide copies of any written communications from current or former employers that may affect the employee's possibility of employment with the prospective employer. The request must be received by the prospective employer not later than thirty (30) days after the application for employment is made to the prospective employer.

I see nothing in this section that prevents an employee from requesting the information provided to prospective employers BEFORE the prospective employer makes the inquiry.

THE BOTTOM LINE is that if you are fired or quit a job, I suggest that you send your employer a letter demanding that you receive copies of correspodence that the company sends to prospective employers.  If you cite the anti-blacklisting statute, that might discourage the employer from badmouthing you or discouraging prospective employers from hiring you.

If you think you are being blacklisted, you can consider hiring an attorney. It is likely that you will have to pay out of pocket for this representation though, because it is unlikely that the attorney will be able to get a fee from the blacklisting employer even if a court action is brought successfully.

Have you been sued by Med-1 Solutions, LLC?

If you have been sued by Med-1 Solutions, LLC?  If you have, please contact my office for a no-charge case review.  We have some legal theories which we are exploring which are not yet fully formed. We are looking for cases to see if our theories are right.  Contact me through the website at www.hoferlawindy.com or call 317-662-4529.

Are you getting calls from Pioneer Credit Recovery?

Pioneer Credit Recovery, Inc. is a subsidiary of Navient, the student loan giant.  If you are getting auto-dialed calls to your cellphone, you should contact a NACA consumer lawyer in your area.  Here's a link to the NACA "find an attorney"page.

The Revived (partially) UAW Legal Services Benefit to Resume in January 2017

The Detroit Free Press is reporting that the much-delayed revival of the UAW Legal Services benefit will resume in January 2017.  I spent over 16 years with UAW Legal Services Plans, and I am glad the members will be getting back some legal services benefits.  The new benefit will be scaled back, only including the office work benefit and no litigation or court appearances.

According to this article, total annual funding for the plan will be about $12 million. That is somewhat higher than I initially was told, and that's a good thing.

Some Comments on Common Ethical Violations Committed by Scamming Debt Settlement Florida Attorneys

If you are scammed by a Florida attorney or law firm, here is a complaint form to file with the Florida Bar.  If you make a complaint, you should refer to at least one specific rule that the attorney has alleged to have broken. Here are the Florida Rules of Professional Conduct.  Sorry for the bad formatting. I only have limited time to write this.  

What allegations come into play?  Take a look at this one:  Rule 4-1.4 Communications.

RULE 4-1.4 COMMUNICATION (a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Take a look at Rule 4-1.5 Fees

RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES (a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar. A fee or cost is clearly excessive when: (1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney; or (2) the fee or cost is sought or secured by the attorney by means of intentional misrepresentation or fraud upon the client.

What I take from this is that any fee obtained by solicitation of telemarketers is an improper fee, period.  The fees that I have seen ordinarily would leave a lawyer of ordinary prudence a definite conviction that the fees are clear overreaching or unconscionable.  

Here's another one:  Rule 4.3 Meritorious claims.  

4-3. ADVOCATE RULE 4-3.1 MERITORIOUS CLAIMS AND CONTENTIONS A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. 

- The Florida debt relief firms (if they do anything) dispute in mass the debts on the client's credit report.  The attorneys have the duty to NOT dispute items that the client doesn't dispute in good faith.  From what I have observed, disputes that aren't undertaken in good faith rarely survive the slightest challenge. 

How about the lawyers duty to supervise nonlawyer assistants? 

RULE 4-5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS (a) Use of Titles by Nonlawyer Assistants. A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) Supervisory Responsibility. With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: RRTFB – May 20, 2016 (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Ultimate Responsibility of Lawyer. Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.  

In the "mill" debt relief firms, the "paralegals" often have no day-to-day contact with the attorneys at all.  

Here's another biggie,  Rule 4-5.5 Professional Independence of a lawyer.  Under this rule a lawyer may not share fees with a nonlawyer (with small exceptions) and the lawyer may not work for a for-profit firm that is owned even in part by a nonlawyer.   As far as I can tell, this rule is violated by every scam firm that I've seen.  When the "support" firm receives the money and pays the lawyer, this rule is violated.

RULE 4-5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER (a) Sharing Fees with Nonlawyers. A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; RRTFB – May 20, 2016 (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4-1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter. (b) Qualified Pension Plans. A lawyer or law firm may include nonlawyer employees in a qualified pension, profit-sharing, or retirement plan, even though the lawyer's or law firm's contribution to the plan is based in whole or in part on a profit-sharing arrangement. (c) Partnership with Nonlawyer. A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (d) Exercise of Independent Professional Judgment. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (e) Nonlawyer Ownership of Authorized Business Entity. A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. Comment The provisions of this rule express traditional limitations on sharing fees. These limitations are to protect the lawyer's professional independence of judgment. Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. As stated in subdivision (d), such arrangements should not interfere with the lawyer's professional judgment. This rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer's professional judgment in rendering legal services to another. See also rule RRTFB – May 20, 2016 4-1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer's independent professional judgment and the client gives informed consent). The prohibition against sharing legal fees with nonlawyer employees is not intended to prohibit profit-sharing arrangements that are part of a qualified pension, profit-sharing, or retirement plan. Compensation plans, as opposed to retirement plans, may not be based on legal fees.

Here's a tough one: Unlicensed Practice of Law.  What exactly constitutes the "practice of law" is frustratingly vague.  One thing we know from this rule though is that a lawyer who is admitted to practice in Florida but who represents a resident from another state must meet the ethical rules of the other state, and failure to meet those rules is a Florida violation too.  

(a) Practice of Law. A lawyer may not practice law in a jurisdiction other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so.

Solicitation of clients Rule 4-4-18  - Very briefly the telemarketing arrangements are ethics violations. 

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer's behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

Have you been receiving collection calls from Sallie Mae or Navient?

Have you been receiving telephone harassment calls from Sallie Mae, Navient, or collectors working for these companies? If you live in Indiana, call me at 317-662-4529, and I will give you instructions on how to minimize these calls, and if the harassment continues, how to maybe, just maybe receive damages under the Telephone Consumer Privacy Act (TCPA).

The Florida Debt Relief Attorney Scam

Recently I have become aware of a (relatively) new twist on an old scam. During the worst days of the mortgage crisis, there were lots of scam artists promising to help people avoid foreclosure of their under-water mortgages. One of the scams involved using actual practicing attorneys as a front for boiler-room telemarketers selling bogus foreclosure relief. Sometimes these attorneys knew they were being used, and sometimes they didn't.  Telemarketers would call, claiming to work for the attorney, giving the attorney's name, and they would promise that the attorney could defend against the mortgage company, getting homeowners out of a mortgage by making claims against the mortgage companies for mistakes made by the mortgage company.

The new scam is exactly the same as the attorney mortgage scam except the promises involve getting people out of debt generally, especially student loan debt.  Some of the players in the attorney debt relief scam are exactly the same as the attorney mortgage relief scam.

Most of these scam operators seem to come from Florida, often from Broward and Palm Beach counties, with the center in Boca Raton. In the 80s, this area was rife with two-bit penny stock dealers and ponzi schemes scamming people out of their money. It was so bad that the area got the nickname "maggot row" or the "maggot mile".  The Maggot Mile is alive and well in the field of debt relief scams.  How bad is it?  I did a Google search on "boca raton" "debt relief" and "scam", and over came up with over 64,000 hits on articles with all 3 terms.    Widen the search to "Florida" instead of "Boca Raton" and it is over 378,000 hits.  

With this many operators, it is pointless to even try to list them. The players change corporate identities every few months, and they get a new attorney front man even more often.


Why these operations are illegal

If you get called by someone saying he or she is from an attorney's office, and they are promising debt relief of any kind, ask them who their employer is - who sends them the W-2.   You should know that it is unethical in most states for an attorney to pay people to solicit prospective clients on the phone with whom they do not have a prior relationship.  It is unethical for an attorney to promise results.  It is not only unethical but deceptive to tell people that debts can be discharged due to offensive claims when an attorney hasn't reviewed the facts to determine in fact if there are any offensive claims.  It is usually unethical for an attorney to charge a non-refundable advance fee.  Attorneys are not allowed to split their fees with nonlawyers. In the operations that I've seen, the money goes to a third party company, not the attorney.

Debt management and debt relief companies have to give you a a lot of disclosure, have to register at the state level, and are generally barred from charging you an advanced fee. In the operations that I have seen, these attorney scams claim they aren't debt management companies, or debt relief companies. That, quite frankly, is a lie, because they aren't legal law practices either.

These operations usually violate state law as well as the federal Credit Repair Organizations Act. If you have given an attorney money in one of these scams, the odds are pretty good that you can get that money back, and maybe triple damages and attorney fees to boot.  If these companies call you, don't give them the time of day, much less any money. If you do give them money, call an experienced consumer attorney. If you are in Indiana, you can call me at 317-662-4529 or outside of Indiana, use the National Association of Consumer Advocates' "find an attorney" page to find an attorney in your area.