The Bar should act to penalize and deter illegal and unethical case solicitation
Yesterday an attractive young lady appeared at my office without an appointment to solicit a relationship with a chiropractic clinic handling motor vehicle personal injury matters. The relationship between some (though certainly not all) chiropractors and some bottom feeding lawyers is notorious. Over the years I have heard numerous accounts of people whose names appear on accident reports getting calls from chiropractors’ offices, where they are immediately matched up with lawyers who meet with them at the chiropractor’s office. When clients have eventually gotten wise to that racket and have found their way to me, usually their cases are severely damaged, often beyond repair. Often I have had phone calls from chiropractor offices asking to schedule lunches, and I have politely declined.
I caught just a glimpse around the corner of the chiropractor’s solicitor — who could instantly rev up the engines of many a vulnerable middle aged male lawyer — and instructed my assistant to tell her thanks, but we don’t handle chiropractor cases.
While I have no evidence that this particular solicitation was linked to any illegal practices, this small incident reminds me of a widespread and corrosive practice of illegal solicitation of injury victims by bottom feeding lawyers, chiropractors and "runners" who often work together. If the leaders professional organizations do not take the lead to deter such illegal practices, we have only ourselves to blame if the improper practices flourish.
I have great respect and affection for the bar counsel whose job it is to handle attorney discipline cases in Georgia. Unfortunately, they have had too little support from the Bar to aggressively go after lawyers whose conduct is not only unethical but criminal but who are not laid up as easy cases. The result is that our disciplinary process is too often viewed as one that takes the "low hanging fruit," e.g., lawyers who screw up their trust accounts, fail to respond to grievances, or plead guilty to felonies. We have not provided the resources and support to investigate and prosecute other cases that would provide a valuable deterrent to unethical and illegal attorney conduct.
The use of runners to solicit injury victims is clearly contrary to both Rules of Professional Conduct and Georgia criminal law. I keep hearing stories of injury victims being solicited in hospitals within days after a wreck, and of lawyers and their agents ("investigators," "patient service representatives," or whatever they call themselves this week) buzzing around after a catastrophe.
So long as there is no effective deterrent to unethical and illegal solicitation of injury victims, those of us who conscientiously follow the rules are getting a double whammy. First, we have a competitive disadvantage in getting business as so many cases are scooped up by those who systematically defy the rules. Second, jurors who have heard about these solicitation practices may assume that we are all dirty.
We lawyers need to police our own, and the State Bar disciplinary process is the primary way we can do it. If we fail to do so, can we blame members of the public for assuming we are all sleazebags?
Rule of Professional Conduct 7.3, Direct Contact With Prospective Clients, permits restricted written communication with an injury victim after 30 days following an incident, but prohibits in person solicitation completely. It provides as follows:
(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if:
(1) it has been made known to the lawyer that a person does not desire to receive communications from the lawyer;
(2) the communication involves coercion, duress, fraud, overreaching, harassment, intimidation or undue influence;
(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or
(4) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.
(b) Written communications to a prospective client, other than a close friend, relative, former client or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment shall be plainly marked "Advertisement" on the face of the envelope and on the top of each page of the written communication in type size no smaller than the largest type size used in the body of the letter.
(c) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer’s employment by a client, or as a reward for having made a recommendation resulting in the lawyer’s employment by a client; except that the lawyer may pay for public communications permitted by Rule 7.1 and except as follows:
(1) A lawyer may pay the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service;
(2) A lawyer may pay the usual and reasonable fees or dues charged by a bar-operated non-profit lawyer referral service, including a fee which is calculated as a percentage of the legal fees earned by the lawyer to whom the service has referred a matter, provided such bar-operated non-profit lawyer referral service meets the following criteria:
(i) the lawyer referral service shall be operated in the public interest for the purpose of referring prospective clients to lawyers, pro bono and public service legal programs, and government, consumer or other agencies who can provide the assistance the clients need. Such organization shall file annually with the State Disciplinary Board a report showing its rules and regulations, its subscription charges, agreements with counsel, the number of lawyers participating and the names and addresses of the lawyers participating in the service;
(ii) the sponsoring bar association for the lawyer referral service must be open to all lawyers licensed and eligible to practice in this state who maintain an office within the geographical area served, and who meet reasonable objectively determinable experience requirements established by the bar association;
(iii) The combined fees charged by a lawyer and the lawyer referral service to a client referred by such service shall not exceed the total charges which the client would have paid had no service been involved; and,
(iv) A lawyer who is a member of the qualified lawyer referral service must maintain in force a policy of errors and omissions insurance in an amount no less than $100,000 per occurrence and $300,000 in the aggregate.
(3) A lawyer may pay the usual and reasonable fees to a qualified legal services plan or insurer providing legal services insurance as authorized by law to promote the use of the lawyer’s services, the lawyer’s partner or associates services so long as the communications of the organization are not false, fraudulent, deceptive or misleading;
(4) A lawyer may pay the usual and reasonable fees charged by a lay public relations or marketing organization provided the activities of such organization on behalf of the lawyer are otherwise in accordance with these Rules.
(5) A lawyer may pay for a law practice in accordance with Rule 1.17: Sale of Law Practice.
(d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.
(e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks to employ the lawyer does so as a result of conduct by any person or organization prohibited under Rules 7.3(c)(1), 7.3(c)(2) or 7.3(d): Direct Contact with Prospective Clients.
The maximum penalty for a violation of this Rule is disbarment.
Direct Personal Contact
 There is a potential for abuse inherent in solicitation through direct personal contact by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer’s own interest, which may color the advice and representation offered the vulnerable prospect.
 The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. The potential for abuse inherent in solicitation of prospective clients through personal contact justifies its prohibition, particularly since the direct written contact permitted under paragraph (b) of this Rule offers an alternative means of communicating necessary information to those who may be in need of legal services. Also included in the prohibited types of personal contact are direct personal contact through an intermediary and live contact by telephone.
Direct Mail Solicitation
 Subject to the requirements of Rule 7.1: Communications Concerning a Lawyer’s Services and paragraphs (b) and (c) of this Rule 7.3: Direct Contact with Prospective Clients, promotional communication by a lawyer through direct written contact is generally permissible. The public’s need to receive information concerning their legal rights and the availability of legal services has been consistently recognized as a basis for permitting direct written communication since this type of communication may often be the best and most effective means of informing. So long as this stream of information flows cleanly, it will be permitted to flow freely.
 Certain narrowly-drawn restrictions on this type of communication are justified by a substantial state interest in facilitating the public’s intelligent selection of counsel, including the restrictions of sub-paragraph (a)(3) & (4) which proscribe direct mailings to persons such as an injured and hospitalized accident victim or the bereaved family of a deceased.
 In order to make it clear that the communication is commercial in nature, paragraph (b) requires inclusion of an appropriate affirmative "advertisement" disclaimer. Again, the traditional exception for contact with close friends, relatives and former clients is recognized and permits elimination of the disclaimer in direct written contact with these persons.
 This Rule does not prohibit communications authorized by law, such as notice to members of a class in class action litigation.
Paying Others to Recommend a Lawyer
 A lawyer is allowed to pay for communications permitted by these Rules, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer’s services. Thus, a legal aid agency, a prepaid legal services plan or prepaid legal insurance organization may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs, provided the programs are in compliance with the registration requirements of sub-paragraph (c)(1) or (c)(2)of this Rule 7.3: Direct Contact with Prospective Clients and the communications and practices of the organization are not deceptive or misleading.
 A lawyer may not indirectly engage in promotional activities through a lay public relations or marketing firm if such activities would be prohibited by these Rules if engaged in directly by the lawyer.
In addition, OCGA § 33-24-53 establishes criminal penalties for improper referrals and recommendations to attorneys and health care providers in cases involving motor vehicle accidents; access to accident reports, as follows:
(a) In a claim arising out of a motor vehicle accident, a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that he may pay for public communications permitted by Standard 5 of Bar Rule 4-102 and the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service. Upon conviction of an offense provided for by this subsection, the prosecutor shall certify such conviction to the disciplinary board of the State Bar of Georgia for appropriate action. Such action may include a suspension or disbarment.
(b) With respect to a motor vehicle insurance benefit or claim, a health care provider shall not compensate or give anything of value to a person to recommend or secure the provider’s service to or employment by a patient or as a reward for having made a recommendation resulting in the provider’s service to or employment by a patient, except that the provider may pay the reasonable cost of advertising or written communication as permitted by rules of professional conduct. Upon a conviction of an offense provided for by this subsection, the prosecutor shall certify such conviction to the appropriate boards for appropriate action. Such action may include a suspension or revocation of the health care provider’s license.
(c) With respect to a motor vehicle accident, no employee of any law enforcement agency shall allow any person, including an attorney, health care provider, or their agents, to examine or obtain a copy of any accident report or related investigative report when the employee knows or should reasonably know that the request for access to the report is for commercial solicitation purposes. No person shall request any law enforcement agency to permit examination or to furnish a copy of any such report for commercial solicitation purposes. For purposes of this subsection, a request to examine or obtain a copy of a report is for "commercial solicitation purposes" if made at a time when there is no relationship between the person or his principal requesting the report and any party to the accident, and there is no apparent reason for the person to request the report other than for purposes of soliciting a business or commercial relationship. All persons, except law enforcement personnel and persons named in the report, shall be required to submit a separate written request to the law enforcement agency for each report. Such written request shall state the requestor’s name, address, and the intended use of the report in sufficient detail that the law enforcement agency may ascertain that the intended use is not for commercial solicitation purposes. The law enforcement agency shall file each written request with the original report. No person shall knowingly make any false statement in any such written request.
(d) A person may not receive compensation, a reward, or anything of value in return for providing names, addresses, telephone numbers, or other identifying information of victims involved in motor vehicle accidents to an attorney or health care provider which results in employment of the attorney or health care provider by the victims for purposes of a motor vehicle insurance claim or suit. Attempts to circumvent this Code section through use of any other person, including, but not limited to, employees, agents, or servants, shall also be prohibited. This provision shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct.
(e) Any person who violates any provision of this Code section shall be guilty of a misdemeanor involving moral turpitude.
A few years ago, a lawyer friend of mine in Cobb County secured cooperation from the State Court Solicitor and law enforcement to set up a sting operation to catch a runner who had solicited him. This resulted in the arrest of that runner and an investigative report on one of the Atlanta TV stations. The person arrested turned out to be a convicted felon from Florida who skipped bond prior to her court date.
I think the State Bar of Georgia ought to actively work with law enforcement agencies to catch not just the runners but the attorneys who are paying them. If we prosecuted and disbarred a few lawyers who illegally use runners, it would be a deterrent to other lawyers who think they have a free pass to use their law licenses in this manner. This is one reason I am taking another shot at election to the State Bar Executive Committee.
We have never used runners or media advertising. Most of our clientele comes from word of mouth, web searches and referrals from other attorneys.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.