Marcellus Shale Ambulance Chasers on the Loose in Pennsylvania
Bill and Nicole
Field Directors – Energy In Depth Marcellus Initiative
We have all heard the term ambulance chasing, right? It’s a slang term for the despicable practice whereby lawyers with little concern for ethics chase down clients. The modern day and slightly classier versions of these hustlers are sometimes know as “rainmakers” because they bring in so much business for their firms. Lawyers today, however, don’t need to follow the ambulance anymore. Instead, they can turn on the news, watch for the latest wild accusation, put out a demagogic advertisement and wait for the business to come to them. The controversies manufactured by anti- natural gas activists regarding Marcellus Shale development in Pennsylvania ensured it was only a matter of time until these new age ambulance chasers and rainmakers would find a way into the game.
The Ways of the Back-of-the-Telephone-Book Firms
Let’s take the case of Attorney Todd O’Malley, for example. O’Malley, you’ll recall, featured Crystal Stroud in a “Faces of Fracking” advertisement campaign run by his back-of-the-phone-book law firm. He claimed Crystal Stroud’s elevated levels of barium in her water were a result of the hydraulic fracturing of a natural gas well that had never even been fractured! Unfortunately for O’Malley, the Department of Environmental Protection (DEP) determined the elevated levels of barium in her water existed decades before natural gas development, despite the exaggerated claims he and his client made for the media and at rallies.
Are we naive to think an attorney ought to check public environmental records before blaming the natural gas industry and launching lawsuits? Apparently so. You might think they would be embarrassed by that whole barium thing, but it seems not.
Can’t teach an old dog new tricks…or maybe you can?
Some might say O’Malley is engaged in some manner of barratry. For those of you who don’t know, barratry is legal jargon for lawyers employing events as a method of finding legal cases. It appears the endless possibilities of the world wide web have enticed Mr. O’Malley to step up his solicitation game. Or, is it a step down? His latest venture is a a new website by the name of www.marcellusoilandgas.com. It takes all the fun out of the chase and brings the unsuspecting victims right to him.
If you haven’t clicked on the link, we encourage you to do so. This generic sounding website, one someone specifically looking for information on Marcellus Shale oil and gas might peruse, quickly becomes an advertisement for litigation services. Visiting this website is like going into a library only to find an office of case starved lawyers. The name is a trick, and a deceptive one at that, throwing all professionalism out the window.
Why not be truthful and choose a proper domain like www.marcellusoilandgaslitigation.com? As of April 18, 2011, it’s available on GoDaddy for $9.99, which is no more expensive than marcellusoilandgas.com and offers an honest title to boot. While such deception is clearly agenda driven, it does not appear to violate any laws. Nevertheless, it certainly does little to correct classic negative stereotypes of lawyers. One can imagine a whole new generation of lawyer jokes springing from this one. It’s also questionable if it adheres to the American Bar Association’s Model Rules of Professional Conduct.
The ABA Model Rules of Professional Conduct, created by the American Bar Association (ABA), is a set of rules that prescribes baseline standards of legal ethics and professional responsibility for lawyers in the United States. These rules are no more than recommendations and are not themselves binding, but Pennsylvania adopted them in 2006 and New York in 2009 to use as guidelines for attorneys practicing in those states.
This website is reminiscent of a late night infomercial, the one where the host is trying to sell you a magic pillow with an open ended question – “Can’t sleep at night?” – followed by a declaratory statement – “You need this pillow!” The visitor to O’Malley’s website first sees the question, “Is your health, home or happiness at risk?” followed next by, “Call us for help” in smaller font. The rest of the website is dissected below.
Turning Lead into Gold
The single most offensive thing about this website is its call to action “Join our grassroots attempt to promote safer oil and gas drilling practices!” followed by the small text “Click for more information or to download materials to make your own local contaminated water kit.” Here are the directions:
Clearly, these attorneys are not nearly as interested in addressing water quality issues as soliciting cases with scripted political theater:
Take a water sample from your faucet using a free “Local Contaminated Water Kit.” Your sample will not be tested. Instead, we will deliver it to Harrisburg on June 7th during the Marcellus Shale Drilling Rally and Lobby Day.
Sending water test results confirming real issues might be a logical gesture to show legislators a problem exists. When those test results do not exist, the Marcellus Shale Oil and Gas Litigation Group, appears to believe it’s just fine to make it up as you go along to further their agenda. Just fill the bottles with brown water and away we go. Again, there’s nothing illegal about it. After all, anyone is free to walk around with a jug of untested water that looks dirty, but what is the point of this ridiculous acting and all these unsubstantiated claims of contamination? It’s certainly not to influence legislation but, rather, to create a spectacle that draws attention to certain trial lawyers who just happen to be available to represent those willing to make such claims. One has to wonder what the ABA would think of such methods? Creating a false problem may be economical for some, but is it ethical? You be the judge.
Propaganda and Scare Tactics
The malarkey on this website seemingly never ends. Under the Health & Safety Concerns tab is some dialogue on the Safe Drinking Water Act and its supposed exemption of oil and gas development. The Safe Water Drinking Act never mentioned hydraulic fracturing until 2005 when legislators simply reaffirmed the fact it is the states who regulate it. States have always, six decades and counting, regulated the fracturing process, and, by any legitimate measure, have compiled an impressive record in that time. Moreover, as in most cases, federal regulation establishes a minimum standard for states to meet, whereas state regulations, especially in Pennsylvania, far exceed federal mandates. If you’re one of those individuals who just pine for more federal regulation, here is a description of federal oversight during each phase of development.
So, there is no “loophole” but let’s take a look at the videos on the homepage of the O’Malley website. While we are sure he is is proud of his television show, “You Be The Judge,” some of the events he speaks of and information he cites have since been disproved, as we illustrated above. Why then, would they still be included on his website, which he obviously updates as we can see from the toxic water test kits? There is no disclaimer acknowledging evidence against the claims by these individuals, but instead we are told, “We hope that you find it informative and interesting.” No, Mr. O’Malley, we find your inclusion of this material to be misleading and disheartening.
The purpose of the videos were to discuss situations in Bradford County following the incident in Leroy last April. Aside from the evidence which has since come out, it is interesting to note Mr. O’Malley never interviews a single resident impacted by the well blowout for his video. Perhaps, just perhaps, it is because testing later confirmed there were no impacts to local water wells. He does, however, have Gasland film director, Josh Fox claiming the situation that occurred in Leroy was “typical” of natural gas operations, despite the fact we have yet to hear of another similar one since.
He also speaks with Crystal Stroud, Sherrie Vargson, Dianne Sigmund, Carol French and a couple families from Paradise Road. He ends the show with, “Is it worth it to allow these companies to have sway over the entire community without any state regulation? Is it necessary for the government and Department of Environmental Protection to get involved? You be the judge.”
Suggesting we have no state regulation is patently false and we’re pretty sure O’Malley knows that as well as anyone. Pennsylvania has some of the strictest regulations in the country, further enhanced with the passing of Act 13, and a long history of regulating oil and gas. It makes us have to ask the question, “Is it worth it, to disregard ethical practices, mislead the general public and make up problems to line your own pockets?” You be the judge.