This morning I got a call from a man in ICU at one of our local hospitals. He said he has hit by a tractor trailer yesterday, and that he had two fractured femurs, a ruptured spleen, ruptured discs, crushed vertebra, etc., and asked if I could meet him at the hospital. I agreed to see him this afternoon at the hospital, which is near my home.
When I arrived a little early at ICU, I found another lawyer at the nurses’ station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.
The lawyer who was at the nurse’s station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request. Apparently the guy was trying to shake down lawyers for "advances" on his great case.
Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam. One admitted he had signed up the case before he figured out it was a scam. None acknowledged having made any advances, which would be highly improper.
One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.
I must say that 99.9% of all potential clients with whom I have met in person over the past 30 years have been pretty sincere folks who honestly believed they had a case. While I decline most proposed cases because I see less legal or economic merit than they perceive, most are pretty decent folks. Often when I don’t accept a case, I try to make an appropriate referral or give some free advice.
However, when a lawyer finds himself or herself in an interview with a potential client and "smells a rat," one should:
- Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
(2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client."
- Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others). In the unlikely event that you’re on "Sixty Minutes," make it a speech that would make both your mother and your legal ethics professor proud.
Remember the example of South Dakota Republican Senator Larry Presler who, when being secretly taped in the Abscam sting investigation, responded, "Wait a minute, what you are suggesting may be illegal," and reported the incident to the FBI.