AMBULANCE CHASERS AND THE SORT: Unlawful & Unethical Lawyer Solicitation Practices in the State of Florida
By: Joshua E. Rodgers (“Intern Josh”) and John M. Phillips
There are nearly 100,000 lawyers licensed to practice law in the state of Florida; or about one lawyer for every 200 citizens in the state (including the majority of those not needing legal assistance). With such a tight market, it’s no wonder why we see such extreme measures taken by lawyers to attract business to their firms. Unfortunately, some lawyers go beyond the ethical/legal boundaries in soliciting prospective clients. Our world is flooded with lawyer advertisements. We are bombarded from all angles, including: radio, television, internet, billboards, buses, and even at sporting events (e.g. advertising a law firm’s name every time an arena football team makes a first down — looking at you Jacksonville Sharks). Some mega-firms can allocate over $3 to $5 Million for advertising each year without blinking an eye. As long as they stay within the parameters of the law, there is very little the public can do to prevent this onslaught of advertising annoyance. Unfortunately, when one of the 19.31-million citizens in Florida comes to the point in their life where they need legal assistance, it is often only one of the few mega-firms they turn to. In effect, this creates a monopoly on the legal services market; and as a result, the rest of the lawyers are left scrambling to find a way to attract business and produce income in order to provide for their families (as well as pay down over $125,000 in student loan debts). This further-tightens the legal market and drives some swayable practitioners to rely on a sort of black market of client solicitation tactics. Creating a monopoly through skyrocketed advertising budgets is one thing; however, some firms, big and small, are flat-out breaking the law through the use of third-party agents. The use of “runners” is a tactic used by firms where an individual obtains recent vehicle accident reports from various sources, including law enforcement agencies and online databases, and then passes the victim’s contact information to a lawyer for solicitation purposes. This is illegal! Although accident reports are generally public record, these records are deemed confidential and not releasable to the public for a period of 60 days after filing. Fla. Stat. § 316.066(3); see also Fla. Stat. § 119.105 (prohibiting the use of accident reports for a commercial purpose). Certain local, state, and federal agencies may have access to this information, but it is not to be used by any means other than within their agency’s statutory duties. For example, a fire department that is requesting crash reports in order to seek reimbursement from an at-fault driver, does not fall within the scope of the provision authorizing immediate access to the accident reports and must wait until 60 days like everybody else, including lawyers. Runners rely on insider information from sources within local governmental agencies to obtain victim contact information. However, it is illegal in the state of Florida for any person connected, through any association, with any hospital, sanitarium, police department, wrecker service or garage, prison or court, bail bondsmen, investigators, photographers, insurance or public adjusters, to communicate with any attorney or person acting on said attorney’s behalf for the purpose of aiding such attorney in the solicitation of legal business. Fla. Stat. § 877.02. Unfortunately, there are some “scavengers” that resort to these measures on a regular basis. Here are some general tactics used by runners and unethical lawyers: • Contacting victims and saying a family member asked them to talk about hiring an attorney • Approaching victims at funeral homes following the death of a love one • Tow truck driver or body shop employee forcing victim to hire particular attorney • Police officer at scene of accident persuading victim to call an attorney • Phone call to victim purporting to be an officer, pressuring to hire specific attorney • Bribing victims with money, gifts or free items in exchange for signing a contract • Visiting victims at home or hospital uninvited to obtain signature for legal services • Sending text messages, emails, or approaching victims in online chat rooms Other than the statutes mentioned above, there are other laws in place to help protect the consumer against illegal lawyer solicitation practices:
Fla. Stat. § 817.234(8) – Provision under the False and Fraudulent Insurance Claims chapter of the Florida Statutes that prohibits anyone from soliciting business for the purpose of filing a motor vehicle tort claim, or claims for PIP benefits. This statute was only recently amended to make it a third degree felony, punishable by up to five (5) years in prison. The statute is not a blanket ban on all solicitation of business by a chiropractor or other medical professionals, but rather, targets only those persons who solicit business for the sole purpose of making motor vehicle tort or PIP benefits claims. In other words, a chiropractor may solicit any prospective patient even if that chiropractor happens to get paid for his services by the patient’s PIP insurance, as long as he does not solicit with the intent to defraud the insurer.
Fla. Stat. § 817.505 – ‘Patient Brokering Prohibited’ statute that makes it unlawful for anyone to pay anything, directly or indirectly to induce the referral of patients from a health care provider or facility, or to solicit any kind of payment directly or indirectly in return for referring a patient to a health care provider or facility. This statute is a third degree felony, punishable by up to five (5) years in prison.
In addition to the laws that protect the consumers from illegal lawyer solicitation, there are also ethical rules that the Florida Bar requires practitioners to abide by, or risk the loss of their licenses. The rules specifically regarding lawyer advertising have recently been amended. The rule regulating direct contact with prospective clients is Florida Rule 4-7.18 and is as follows: (a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. (b) Written Communication. (1) A lawyer may not send, or knowingly permit to be sent, on the lawyer’s behalf or on behalf of the lawyer’s firm or partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication directly or indirectly to a prospective client for the purpose of obtaining professional employment if: (A) 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; (B) the written communication concerns a specific matter and the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter; (C) it has been made known to the lawyer that the person does not want to receive such communications from the lawyer; (D) the communication involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; (E) the communication violates rules 4-7.11 through 4-7.17 of these rules; (F) the lawyer knows or reasonably should know that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer; or (G) the communication concerns a request for an injunction for protection against any form of physical violence and is addressed to the respondent in the injunction petition, if the lawyer knows or reasonably should know that the respondent named in the injunction petition has not yet been served with notice of process in the matter. (2) Written communications to prospective clients for the purpose of obtaining professional employment that are not prohibited by subdivision (b)(l) are subject to the following requirements: (A) Such communications are subject to the requirements of 4-7.11 through 4-7.17 of these rules. (B) Each page of such communication and the face of an envelope containing the communication must be reasonably prominently marked “advertisement” in ink that contrasts with both the background it is printed on and other text appearing on the same page. If the written communication is in the form of a self-mailing brochure or pamphlet, the “advertisement” mark must be reasonably prominently marked on the address panel of the brochure or pamphlet and on each panel of the inside of the brochure or pamphlet. If the written communication is sent via electronic mail, the subject line must begin with the word “Advertisement.” Brochures solicited by clients or prospective clients need not contain the “advertisement” mark. (C) Every written communication must be accompanied by a written statement detailing the background, training and experience of the lawyer or law firm. This statement must include information about the specific experience of the advertising lawyer or law firm in the area or areas of law for which professional employment is sought. Every written communication disseminated by a lawyer referral service must be accompanied by a written statement detailing the background, training, and experience of each lawyer to whom the recipient may be referred. (D) If a contract for representation is mailed with the written communication, the top of each page of the contract must be marked “SAMPLE” in red ink in a type size one size larger than the largest type used in the contract and the words “DO NOT SIGN” must appear on the client signature line. (E) The first sentence of any written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member must be: “If you have already retained a lawyer for this matter, please disregard this letter.” (F) Written communications must not be made to resemble legal pleadings or other legal documents. (G) If a lawyer other than the lawyer whose name or signature appears on the communication will actually handle the case or matter, or if the case or matter will be referred to another lawyer or law firm, any written communication concerning a specific matter must include a statement so advising the client. (H) Any written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member must disclose how the lawyer obtained the information prompting the communication. The disclosure required by this rule must be specific enough to enable the recipient to understand the extent of the lawyer’s knowledge regarding the recipient’s particular situation. (I) A written communication seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope, or on the outside of a self-mailing brochure or pamphlet, the nature of the client’s legal problem. (3) The requirements in subdivision (b)(2) of this rule do not apply to communications between lawyers, between lawyers and their own current and former clients, or between lawyers and their own family members. If you or a loved one has been solicited after an accident, either in person or by phone, you may go to this link to report a possible case of fraud https://secure.fldfs.com/fraud/nonIndustryRSF.asp. You may also call the Florida Division of Insurance Fraud at 1-850-413-3115 or contact the Florida Bar directly at 1-850-561-5600.
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