Comment by Jack W. Kennedy, Jr.
In all U.S. jurisdictions, lawyers are subject to restrictions, and in some circumstances outright prohibitions, on the direct solicitation of potential clients. The American Bar Association Model Rules of Professional Conduct (Model Rules) include a blanket prohibition on in-person and live telephone client solicitation “when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.” While there is no general prohibition on client solicitation through written or prerecorded telephone solicitation, restrictions do exist on such communications. Under the Model Rules, attorneys may not solicit employment through written or recorded communications if (1) the potential client has made known to the lawyer that he or she does not wish to be solicited or (2) “the solicitation involves coercion, duress or harassment.” In the case of written solicitations, the communication must be clearly labeled as “Advertising Material” under the Model Rules. These restrictions are the only ones placed upon written or recorded solicitations by lawyers under the Model Rules. However, several states have supplemented these provisions by imposing additional restrictions on the written solicitation of potential clients. These range from minor restrictions—such as a requirement that “Advertising Material” be in red ink—to major restrictions—such as a stipulation that no attorney may contact a potential client regarding an action related to an accident or disaster until thirty days after such an event. The policy reasons behind these restrictions may seem obvious as attempts to confront a problem nearly as old as the legal profession itself—barratry. The Supreme Court summarized the evils of client solicitation as “stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation.” The interests in preventing such undesirable behavior within the legal profession are very strong, and they should be afforded great weight. However, there are important competing policy interests that confront such restrictions as well. Among these competing interests are the need to make information regarding legal services available to the public, the need to protect unrepresented potential plaintiffs from potential defendants and their attorneys, and the need to quickly commence the litigation process after accidents and injuries.
This Comment will argue that these conflicting policy interests do not receive enough attention in the formulation of rules regarding the written solicitation of potential clients, particularly as to the thirty-day prohibition on the solicitation of potential plaintiffs after an accident or injury. Instead, the unprofessional conduct of some individual soliciting attorneys receives far too much attention. For example, in Louisiana, the thirty-day rule was enacted in response to the unprofessional behavior of some attorneys in the aftermath of a major chemical release in Bogalusa, Louisiana.
While there will always be unprofessional conduct on the part of a few individuals in any profession, it is important to carefully consider the consequences of the imposition of extreme restrictions in response to such unprofessionalism. States, when confronted with reports of unprofessional behavior, have reacted in different ways. In a general sense, states tend not to greatly alter the Model Rules when they adopt them as the standards for professional conduct. However, the fact that requirements regarding client solicitation differ, sometimes significantly, from state to state evinces that states evaluate the conflicting policy considerations involved differently. Some states have overreacted to the perceived problem of unprofessional written client solicitation. This overreaction is not harmless. Specifically, the thirty-day waiting period gives an unfair advantage to potential defendants in accident and disaster cases and frustrates the policy goals of another rule, which prevents opposing counsel from contacting represented parties. Furthermore, the disparity between the methods of business attraction used by the plaintiffs' bar and those used by corporate defense firms as a practical matter presents an unfair impediment to potential plaintiffs in obtaining information regarding their legal rights. Another problem with the thirty-day rule is that it may delay litigation, thereby allowing evidence to spoliate or degrade and parties to forget important facts and details. Finally, the thirty-day rule serves as a roadblock to an attorney's goal of advancing justice.
About the Author
Jack W. Kennedy, Jr. J.D. candidate 2001, Tulane University School of Law; B.A., B.S. 1998, Mercer University.
Citation
75 Tul. L. Rev. 777 (2001)