Washington Lawyer

Bar Counsel: Tragedy and the Attorney Solicitation Debate

From Washington Lawyer, October 2009

By Gene Shipp and Joe Perry

Illustration by Mick Wiggins

It was a rough haul on the Metrorail this summer in the Washington metropolitan area. Anxious riders and flustered attendants, enduring long delays, crowded the Red Line platforms. When the trains arrived, there was a mad jockeying for position, with some individuals angling for doors, others angling for the exits, and still others simply giving up and finding a spot in front of one of those large box fans set out to cool the masses.

This inconvenience, of course, grew out of tragedy. On June 22, reportedly due to a faulty track circuit, a Red Line train bound for downtown crashed into another already stopped train between the Takoma and Fort Totten stations. The next day, many of us boarded our trains wondering about our own safety. Meanwhile, Web sites directed at victims of the crash began sprouting up, speculating on the potential negligence involved in the crash and prodding would-be clients with flashing buttons announcing live chats with attorneys who were only a mouse-click away. Other lawyers chose instead to make both phone and in-person calls to victims’ homes. In the midst of this local crisis, an old debate resurfaced: the ethics of attorney solicitation.

Years ago, in the seminal case Florida Bar v. Went For It, Inc., the United States Supreme Court addressed attorney solicitation in the context of targeted mailings.[1] At issue was the constitutionality of two Florida Bar Rules that, when taken together, prohibited targeted, direct-mail solicitations to accident and disaster victims within 30 days of injury. In finding for the Florida Bar, the Court restated the principle that lawyer advertising was a form of commercial speech and, as such, could be subjected to stricter regulation. The Court further found that Florida had a substantial and legitimate interest in protecting the “flagging reputation of Florida lawyers” by prohibiting solicitation immediately following an accident.[2] Since that decision, at least nine other jurisdictions have adopted similar postdisaster rules.

The District of Columbia does not have such a rule.

There are several policy justifications raised in defense of direct solicitation immediately following an accident. One argument is that other parties who have a stake in the accident, such as insurance companies and investigators for the defense, often are free to make direct contact with the victims. This creates what many consider an unbalanced situation: Those who seek to protect victims’ rights are subjected to obstacles, while those with interests adverse to the victims are not. There also are arguments that any mandatory waiting period can lead to a deterioration of evidence or the decreased memory of witnesses. There is further concern that without aggressive advertising, injured members of the public may fail to exercise their rights. The D.C. Rules of Professional Conduct appear to come down in favor of these arguments, permitting in–person solicitation of recent accident victims.

However, local attorneys still are encouraged to exercise caution. Solicitation, especially that similar to what followed the Metro crash, is fraught with risk.

First, lawyers who choose to engage in postaccident solicitation would be well–advised to search beyond just the ethical rules. Even the Office of Bar Counsel was surprised to learn that it would have been a violation of a federal statute to directly solicit victims or their families if it had been Amtrak, rather than Metro, that suffered an accident.[3] There also is a similar statute governing airline disasters.[4]

Another concern is choice of law. For example, if an attorney is licensed both in the District of Columbia and in another jurisdiction prohibiting direct solicitation, and he or she proceeds to solicit business from victims of an accident that occurred in that other jurisdiction, the attorney could well be subject to the ethical rules of that other jurisdiction.[5] Further, even if the soliciting attorney is only licensed in the District, other attorneys in the firm may be held responsible for the solicitation if they are licensed where the accident took place.

Finally, although direct solicitation in the wake of an accident may be generally allowed, lawyers must still abide by the rules. For example, Rule 7.1 prohibits solicitations that are “materially misleading,” contain assertions that “cannot be substantiated,” and involve the use of “coercion, duress, or harassment.” In addition, the use of a nonemployee (or “runner”) to conduct solicitation is prohibited.

In the future, solicitation issues likely will become more complex as rapidly developing technology creates more choice of law questions and as jurisdictions tend to lean toward greater regulation. Meanwhile, the policy debate continues, and we continue to learn from it. In his Went For It dissent, Justice Anthony Kennedy observed that “[t]he image of the profession cannot be enhanced without improving the substance of its practice.”6 This statement applies equally both to attorneys who practice aggressive solicitation and those who disdain it, and it serves as a reminder that through our every action, from the first time we hand a client our business card to when we deliver our closing argument on appeal, we are advertising on behalf of our profession.

Joe Perry is a law clerk.

Notes
[1] Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).
[2] 515 U.S. 618 at 625. Although it had been raised earlier in the litigation, the Court did not consider the Florida Bar’s interest in protecting members of the public from undue influence and overreaching during a vulnerable time—a common argument in defense of regulating such solicitation.
[3] Rail Passenger Family Assistance Act, 49 U.S.C § 1139 (2008). The statute creates a 45-day waiting period and covers accidents that take place on interstate and “intercity rail passenger transportation.” “Commuter rail,” such as Metro, however, is excluded from the definition of that term. 49 U.S.C. § 24102.
[4] The Aviation Disaster Family Assistance Act, 49 U.S.C. § 1136 (1996), also creates a 45-day waiting period. Notably, both statutes apply to any potential party in a litigation, plaintiff or defense.
[5] D.C. Rule 8.5(b)(2) provides that such an attorney would be subject to the rules of the other jurisdiction if his or her solicitation “clearly has its predominant effect” in the other jurisdiction.
[6] 515 U.S. 618 at 645.

Disciplinary Actions Taken by the Board on Professional Responsibility Hearing Committees on Negotiated Discipline
IN RE JAMES W. BEANE JR. Bar No. 444920. July 24, 2009. The Board on Professional Responsibility Ad Hoc Hearing Committee recommends that the D.C. Court of Appeals accept Beane’s petition for negotiated discipline and suspend him for six months with fitness for violation of Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.4(a), 1.4(b), 1.15(a), 1.16(d), 8.1(b), 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

IN RE RONNIE THAXTON. Bar No. 448815. July 10, 2009. The Board on Professional Responsibility Hearing Committee Number Four recommends that the D.C. Court of Appeals accept Thaxton’s petition for negotiated disposition and suspend him for one year with six months stayed, followed by three years of probation, with conditions, including restitution and consultation with the D.C. Bar Practice Management Advisory Service for violation of Rules 1.2(a), 1.4(a), 1.4(b), 1.4(c), 1.5(c), 1.15(a), 1.15(b), 1.15(c), 8.4(d) and D.C. Bar R. XI, § 19(f).

IN RE HARRY TUN. Bar No. 416262. July 14, 2009. The Board on Professional Responsibility Ad Hoc Hearing Committee recommends that the D.C. Court of Appeals accept Tun’s petition for negotiated disposition and suspend him for nine months, followed by one year of probation. Ninety days of the nine-month suspension will be suspended, provided Tun complies with specific conditions stated in the negotiated disposition. Tun violated Rules 1.5(a), 1.5(f), 3.3(a)(1), 8.4(c), and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
IN RE TIMOTHY R. BALDUCCI. Bar No. 490242. July 30, 2009. The D.C. Court of Appeals disbarred Balducci. Balducci pleaded guilty in the United States District Court for the Northern District of Mississippi to one count of conspiracy to commit bribery of an elected official, in violation of 18 U.S.C. § 371, for his role in a scheme to pay a $40,000 bribe to a state court judge for a favorable ruling, a crime involving moral turpitude for which disbarment is mandatory in accordance with D.C. Code § 11-2503(a)(2001).

IN RE MICHAEL RJ DAVIS. Bar No. 470652. July 9, 2009. The D.C. Court of Appeals disbarred Davis by consent, effective immediately.

IN RE DANIEL S. ORCI JR. Bar No. 943720. July 2, 2009. The D.C. Court of Appeals disbarred Orci based on a pattern of misconduct set forth in four counts. Misconduct in the first matter is based on Orci’s activities in connection with his attempted representation of a client who had been found lacking the capacity to form an attorney–client relationship. The second matter related to Orci’s conduct during and after a foreclosure proceeding on a condominium he owned in Virginia. The misconduct includes Orci’s efforts to hinder a duly noticed foreclosure proceeding, filing of frivolous lawsuits, and making false statements to a tribunal. The third matter involved frivolous lawsuits and Bar complaints that Orci filed against family members, and Orci’s attempts to have his mother declared legally incompetent and have himself appointed her guardian and financial conservator in an effort to gain financial advantage. Finally, Orci failed to respond to Bar Counsel’s investigative inquiries and to orders of the board. Rules 1.3(b)(2), 1.7(b)(4), 1.8, 1.16(a)(1), 3.1, 3.2(a), 3.3(a)(1), 3.4(c), 3.5(c), 5.5(a), 8.1(b), 8.4(c), 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

IN RE HOWARD R. SHMUCKLER. Bar No. 395462. July 30, 2009. The D.C. Court of Appeals disbarred Shmuckler. The United States District Court for the Central District of California convicted Shmuckler of bankruptcy fraud in violation of 18 U.S.C. § 152(1) and (2), a crime involving moral turpitude for which disbarment is mandatory in accordance with D.C. Code §11-2503(a)(2001).

IN RE STEVEN M. WOGHIN. Bar No. 180075. July 30, 2009. The D.C. Court of Appeals disbarred Woghin by consent, effective immediately.

Reciprocal Matters
IN RE PATRICK E. BAILEY. Bar No. 447132. July 23, 2009. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed reciprocal discipline and suspended Bailey for three years with fitness. In his application for admission by motion to the Virginia State Bar, Bailey submitted a sworn character and fitness questionnaire in which he failed to disclose, in response to questions calling for such information, his Jamaica conviction for manslaughter, Marine Corps proceedings based on the conviction, and certain traffic offense convictions.

IN RE MICHAEL F. GALLAGHER. Bar No. 404821. July 30, 2009. In a reciprocal matter from Florida, the D.C. Court of Appeals suspended Gallagher for three years with fitness and ordered that he satisfy the conditions imposed by the state of Florida as reciprocal discipline.

IN RE BADA PHU NGUYEN. Bar No. 462080. July 16, 2009. In a reciprocal matter from Virginia, the D.C. Court of Appeals disbarred Nguyen as identical reciprocal discipline. The Virginia State Disciplinary Board found that Nguyen had misappropriated entrusted client funds and revoked his license to practice law by consent.

IN RE BRADLEY DAVID SCHWARTZ. Bar No. 191965. July 16, 2009. In a reciprocal matter from Maryland, the D.C. Court of Appeals disbarred Schwartz as identical reciprocal discipline. The Court of Appeals of Maryland found that Schwartz had misappropriated entrusted client funds and disbarred him by consent.

IN RE LOUIS PETER TANKO JR. Bar No. 434000. July 23, 2009. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Tanko for 60 days. The Court of Appeals of Maryland found that Tanko had violated rules relating to candor toward a tribunal and engaged in conduct prejudicial to the administration of justice when, while representing a client, he “filed expungement petitions for charges ineligible for expungement in an attempt to have the petitions ‘slip by’ the court and be granted,” where Tanko “was aware of the three-year waiting period . . . [and] his actions in this regard were misleading to the District Court.”

Interim Suspensions Taken by the District of Columbia Court of Appeals
IN RE JAMES Q. BUTLER. Bar No. 490014. July 8, 2009. The D.C. Court of Appeals suspended Butler on an interim basis, effective immediately, based on the grounds that he appears to pose a substantial threat of serious harm to the public.

IN RE KEVIN J. FLYNN. Bar No. 422993. July 30, 2009. Flynn was suspended on an interim basis based upon discipline imposed in New York.

IN RE RICHARD J. HAAS. Bar No. 955039. July 21, 2009. Haas was suspended on an interim basis based upon discipline imposed in New York.

IN RE DONALD P. MCLAUGHLIN. Bar No. 261131. July 22, 2009. McLaughlin was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE LAWRENCE T. ROBINSON. Bar No. 210823. July 21, 2009. Robinson was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE LESLIE D. SILVERMAN. Bar No. 448188. July 21, 2009. Silverman was suspended on an interim basis based upon discipline imposed in Virginia.

Informal Admonitions Issued by the Office of Bar Counsel
IN RE ISADORE B. KATZ. Bar No. 50948. July 8, 2009. Bar Counsel issued Katz an informal admonition for failing to file a claim within the statute of limitations while representing a client in her legal malpractice action against her former counsel. Rules 1.1(a), 1.1(b), 1.3(a), and 1.3(c).

IN RE ROBERT L. OSWALD. Bar No. 364446. July 8, 2009. Bar Counsel issued Oswald an informal admonition for failing to provide competent representation (failure to file a bar complaint against the client’s former counsel, failure to file a motion to reopen, and failure to pursue the client’s immigration matter), failure to communicate with the client regarding the status of the matter, to act with reasonable promptness, and to promptly withdraw from the client’s case when he discovered that he could not diligently pursue or competently complete the matter while representing his client in an immigration matter. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), 1.4(b), and 1.16(a).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted on the D.C. Bar Web site at www.dcbar.org/attorney-discipline. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since mid-1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/ opinions_mojs.jsp.