This article from former Georgia Bar President Ken Shigley is illustrative of how tough an issue client solicitation can be. As Shigley notes, the days following the loss of a loved one, already grief-filled and exhausting, can get even worse when lawyers start insinuating themselves:
Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or days after a tragedy, by people who represent themselves as “counselors,” “investigators” and even clergy, who slip into conversation a question about whether they have a lawyer yet.
According to Shigley, the problem isn’t so much Georgia law – which already prohibits in-person and telephonic solicitation, as well as written solicitation within 30 days of an accident – but the lack of interest among the public and prosecutors in reporting and pursuing solicitation cases.
But is solicitation really a problem?
I can see where it looks that way to Shigley; he’s a long-time plaintiff’s personal injury attorney and a car accident attorney with a great track record and a sterling reputation. I’m sure it annoys him no end to see less scrupulous – and probably less competent – personal injury attorneys playing fast and loose with the law. And there’s no question that many people, in the days following a tragedy, are in no shape to be making a choice of counsel.
And yet, as Shigley notes, claims adjusters and other insurance representatives don’t labor under similar restrictions. They are free to communicate with those who have suffered losses, and potentially to get these putative plaintiffs to give up valuable rights under circumstances where those who would otherwise represent them are barred from proactively communicating about these rights.
I don’t think this is a tenable state of affairs. And I doubt that Georgia’s law – which includes criminal sanctions – would survive constitutional scrutiny if the Supreme Court reviewed it.
It’s been 20 years since the Supreme Court heard an attorney solicitation case, and that decision – authored by probably the most ardent defender of attorney advertising regulation in the modern era, Sandra Day O’Connor – was split 5-4.
O’Connor, obviously, has long since left the bench. And today’s Supreme Court is far more respectful of the First Amendment than the court was in Florida Bar v. Went For It. It’s hard to imagine a court that has decided in recent years that the government can’t censor independent campaign advocacy, punish citizens for pretending to be war heroes, or bar nutcases from protesting funerals, finding that the “disrepute to the bar” and general sleaziness of ambulance chasing is sufficient to overcome the first amendment interest in having full access to information about one’s legal rights.
This doesn’t mean that regulations couldn’t bar deceptive advertising, or even in-person or telephonic solicitation. But a 30-day ban on written solicitation? While such advertising may seem undignified and offensive, the precedent on which restricting it rests is increasingly shaky.