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Unlawful solicitation is taken very seriously

Senior Editor Regular News

Unlawful solicitation is taken very seriously

Board panel is considering even stronger methods of enforcement

Senior Editor

In the wake of a lawyer disciplined for improper solicitation, a Bar committee is reminding members to be vigilant and report inappropriate approaches to potential clients to the Bar.

Jay Cohen The discipline case involves a South Florida lawyer who met a potential client who had been in an auto accident. F.S. §817.234(8)(b) prohibits solicitation except by general advertising within 60 days of such incidents. Violation is a third-degree felony.

The lawyer was charged in the 15th Circuit and eventually pleaded no contest. Adjudication of guilt was withheld and the lawyer was sentenced to 18 months of probation and 150 hours of community service.

The Bar opened a disciplinary case and the lawyer was indefinitely suspended by the Supreme Court in January following the criminal action, while the Bar continues to investigate the case.

“This demonstrates two things,” said Bar Board of Governors member Jay Cohen, chair of the Special Committee to Study the Unethical and Illegal Solicitation of Legal Business. “It demonstrates the willingness of The Florida Bar through its staff of prosecutors to pursue unlawful solicitation as long as they know about it and as long as they have supporting witnesses.

“The second thing it demonstrates is that we have rules in place already that can support going after individuals who violate the rules of the Bar and Florida law with respect to unlawful solicitation.”

In a report to the Board of Governors last December, Cohen said the committee has heard of many examples of improper solicitation, including direct approaches to already represented clients, personal injury victims being approached, use of “runners” or other third parties to approach potential clients or their families, and solicitations in criminal, commercial, and business cases.

Cohen told the board a problem was the indifference of attorneys to and a lack of knowledge by consumers about the improper practices, which makes prosecution under Bar rules difficult.

“This case shows that it takes the efforts from all involved, The Florida Bar to support enforcement, the staff of The Florida Bar to follow through with it, and most importantly people who are willing to complain about such conduct and see it through,” he said.

“The committee is undertaking an examination of existing Bar rules and Florida statutes to see if there are any changes or modifications that are required to have stronger methods of enforcement that could be modified through Bar rules or even advocating changes in Florida law,” Cohen added.

Bar rules prohibit the solicitation – face to face, by phone including via a cold call, or through a third party – of a client who is not a family member or with whom the lawyer does not have a prior professional relationship. Attorneys may not send direct mail solicitations to prospective clients within 30 days of an accident, and then that mailing must meet several conditions including stating where the attorney got the recipient’s name, be marked as an advertisement, and start by advising the recipient to ignore the letter if he or she has already retained another lawyer.

Over the years, the Bar has meted out disciplinary sanctions for violating the solicitation rules. A sample of those cases includes:

The Florida Bar v. Barrett, 897 So. 2d 1269 (Fla. 2005). Solicitation by agent. Attorney who solicited clients at a hospital through his “paralegal,” an ordained minister, disbarred.

The Florida Bar v. Flowers, case no. SC02694. Consent judgment for 20-day suspension for lawyer who used runners to solicit business.

The Florida Bar v. Stafford, 542 So. 2d 1321 (Fla. 1989). Attorney suspended for six months for paying police officer a percentage of legal fees earned to solicit personal injury cases for the attorney; some of the cases were ones in which the police officer investigated accident cases as a police officer.

The Florida Bar v. Wolfe, 759 So. 2d 639 (Fla. 2000); corr.op. 25 Fla. L. Weekly S460 (Fla. 2000). Attorney suspended for one year for direct solicitation of clients in wake of tornados and for paying nonlawyer for referrals. The attorney passed out brochures that included testimonials.

The Florida Bar v. Weinstein, 624 So. 2d 261 (Fla. 1993). Attorney disbarred for soliciting brain-injured stranger in hospital.

The review by the solicitation committee may take on an added significance because of amendments being considered to the Bar’s lawyer referral service rules. Those seek to address the rapid evolution of the legal marketplace being driven by private referral services, legal directories, and legal service companies seeking to link attorneys and consumers for document review, incorporations, simple divorce, fixed-fee, or other services. The Bar is defining all of those entities as “qualifying providers” and all of them could potentially be looking at innovative ways of soliciting clients. (See the April 15 News.)

“It certainly is something we’d better be on the alert for,” Cohen said. “There may be a heightened sense of desperation by lawyers who solicit because they feel the competition is now going to be far greater.”

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