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Danny Feldman
Danny Feldman
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Non-Solicitation of Cases – Is it ever going to be enforced?

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I went to a seminar yesterday and listened to someone from the State Bar speak about lawyer ethics, non-solicitation, rules regarding advertising and solicitation etc. and frankly, after hearing this talk, it left me – well, let’s say, grouchy and irritable. Why?

I don’t know about the rest of the nation, but in Alabama, it is considered to be unethical and the Rules of Professional Conduct prohibit the "running of cases." Attorneys are not supposed to contact people who have just been in a wreck or otherwise injured, absent some very limited and specific exceptions. Attorneys are not supposed to "buy" a case etc. Yet, we all know it goes on, everyday. In fact, you can bet that when there is a "big-case" a tractor trailer crash involving death or very serious injuries, so called "investigators" are at the scene or in the hospital steering injured people or grieving family members to attorneys who are there to "help" them.

Please allow me to digress and give some caveats – first, defendants (trucking companies and their insurers) are not prohibited from immediately contacting injured people and often defendant’s investigators are at the scene of a wreck at the same time emergency personnel are arriving. These investigators often obtain statements in the hospital and push people to settle their cases early on – so the defendant’s side is certainly not immune from criticism. Second, early investigation does help in preparing a case and getting at facts that may get gone soon (tire tracks in a median or skid marks on the roadway that are washed away in the next rain). So, whether or not running/investigating cases early on should be prohibited (as it is in Alabama) or not prohibited (as I understand is the case in the District of Columbia) is a debate for a different day. Finally, I am sure that many cases that get run are, in fact, handled by highly skilled and competent attorneys that do a good job for their clients.

However, as regards those jurisdictions where "running" is prohibited, we all know it happens, routinely, and often on the most lucrative, most desirable plaintiff cases (big injury/strong liability/solvent defendant). Further, just as we know steroids work – athletes don’t use steroids because they have nothing else to do; they use it so they can improve their athletic performance, hit 60 home runs in a year and turn in other remarkable feats – so too, do lawyers run cases – it works. They get the best cases and make the most money – period. And, they are able to do so because they know that the chances of getting caught and paying a real price for their behavior are virtually nil.

In fact, during the recent seminar, the speaker from the Bar spent the first couple of minutes talking about how extremely difficult it is to prove that a lawyer is running the case because the link between the runner and the lawyer often is tenuous. Maybe so. Or maybe the Bar does not have the tools it needs to really enforce the rules against non-solicitation. Or maybe it’s just easier for the Bar to look the other way. Maybe all the above. Frankly, I don’t know.

But I do know this – after the first very few minutes talking about the real problem – running cases – I listened to the Bar speaker spend the bulk of his time talking about highly detailed and specific rules aimed presumably at addressing who knows what perceived issue. For example, I heard alot about a rule which allows me to buy an ad in my son’s football program and display my business card only (name, address and contact info – nothing more) but prohibits me from stating my practice area (PI) unless I include the mandated disclaimers – and I realized that many of the rules and enforcement of same are just downright silly. I understand that it’s easy to look at a paid advertisement in a school program and see whether it does or does not meet the requirements of the rule cited above. But really, who cares? What possible difference does it make for the Bar to be spending a minute of time and effort on that, when the real issue of lawyers running cases contimues unabated?

Assuming that the Bar and the profession really believe that solicitation of clients is detrimental to the practice of law and needs to be prohibited, then we ought to act like it and root out and punish the lawyers that engage in it. Unless and until that is done, some lawyers will continue to play by the rules and some will not. The ones that run cases will be just like the athletes that cheat, that use steroids and other performance enhancing substances (albiet illegal) – they will turn in remarkable feats – they will do very well. The ones that don’t will do the best we can, at a significant competitive disadvantage.

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  1. Mike Bryant says:
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    You make some very good points. We have had all sorts of examples of ads being questioned or firm names being policed, but very little effort to really look at solicitation. Minnesota did solve one issue by making all statement of injured persons presumptively fraudulent to prevent the hospital statements, but more needs to be done to look at this issue.