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May D.C.’s anti-runner law go down in flames

Nov 15, 2006 May D.C.’s anti-runner law go down in flames

Recently a preliminary injunction motion was filed against the District of Columbia’s law prohibiting ambulance chasing by personal injury lawyers. As much as I disdain ambulance chasing, I believe the anti-runner law violates the First Amendment, for the reasons presented in my attached February 28, 2006, letter against the legislation. May D.C.’s anti-runner law go down in flames.

February 28, 2006

Honorable Phil Mendelson

Chairperson Committee on the Judiciary Council of the District of Columbia 1350
Pennsylvania Avenue, NW

Washington , DC 20004

Tel: 202-724-8064
Fax: 202-724-8099
PMendelson@dccouncil.us

Bill 16-208 (the “White Collar Insurance Fraud Prosecution Enhancement Amendment Act of 2005”)

Dear Chairperson Mendelson:

Having carefully reviewed and analyzed the latest version of Bill 16-208 (the Bill), I urge the deletion of all provisions prohibiting contact with injury victims, and prohibiting and penalizing the use of runners who solicit clients for lawyers (collectively, anti-solicitation provisions).

By way of introduction, I am a trial lawyer focusing on criminal defense, First Amendment defense, and Constitutional defense. I have no financial stake in this legislation, I disapprove of the use of runners in injury cases, and have never used them. I have litigated many injury cases on behalf of victims, have never been on the opposite side (other than libel defense), and have never represented any insurance company. I represent no client concerning the Bill.

For many years, I have been a member of the Trial Lawyers Association of the District of Columbia (TLA-DC). Because the TLA-DC has been supporting Bill 16-208, I find it particularly important to voice my opposition to the Bill’s anti-solicitation provisions, because the TLA-DC does not speak in my name whatsoever in this instance.

When lawyers obtain clients through runners who rush to accident scenes and hospitals, or by doing so themselves, they help perpetuate the stereotype of the lawyer ambulance chaser. I fully disapprove of such practices.

See, e.g., D.C. Code §§ 22-1314.02 (penalizing harassment and disruption at medical facilities) and 22-404 (penalizing harassment and stalking).

Traditionally, lawyer solicitation has been regulated through codes of attorney professional conduct, and enforced by bar counsels. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). Regulation through this route has enabled the traditional sanctions for lawyers’ professional conduct violations; e.g. warnings, probation, suspension, and disbarment. Moreover, this route enables a more careful case-by-case evaluation to assure adherence to the courts’ many pronouncements on First Amendment protections for lawyer solicitation than does the Bill’s scheme of applying fines for prohibited solicitation.

For enforcement of lawyers’ alleged violations of professional conduct rules in the District of Columbia, the Bar Counsel’s lawyers ordinarily step in, to help protect all sides’ rights. However, the Bill provides for fines for lawyer solicitations without injecting the safeguard of Bar Counsel involvement.  This places the accused lawyer in a particularly difficult situation. A mere accusation of a solicitation does not automatically mean the solicitation has taken place (particularly when it is unclear whether a runner is actually acting at the bidding of a particular lawyer). Ideally, a lawyer would fully contest false accusations of violating the anti-solicitation provisions. However, doing so  takes money to hire a lawyer, lest the lawyer parrots back the warning that a person who represents oneself in court has a fool for a client. On the other hand, for the lawyer not to vigorously contest such accusations — even if the immediate sanction is not more than a $1000 fine — brings the risk of being branded as one who runs afoul of the law.

The anti-solicitation provisions are content-based restraints on speech, and violate the First Amendment. Florida Bar v. Went for It, 515 U.S. 618 (1995)[1]; Ficker v. Curran, 119 F.3d 1150 (4th Cir. 2002). The First Amendment exists not to protect speech that people like, but to protect distasteful speech, so that the free speech rights of all of us will be protected. It is not enough to ask whether the courts might uphold the Bill against a First Amendment challenge. Merely because a court upholds a statute does not automatically make the statute right. See, e.g.,  Dred Scott, 60 U.S. 393 (1857) (upholding slavery and the "right" of slaves’ owners to treat them as chattels) and Plessy v. Ferguson, 163 U.S. 537 (1896) (permitting racial segregation).

The trends in the courts’ First Amendment jurisprudence will make it harder than ever for the anti-solicitation provisions to hold up in court against a First Amendment challenge. Governing Supreme Court case law does not permit anti-lawyer-solicitation laws absent legislative reliance on a study establishing the likelihood of significant harm of such solicitations. Florida Bar v. Went for It, 515 U.S. 618 (1995) (requiring data showing harm of lawyer solicitation before permitting an anti-solicitation scheme); Ficker v. Curran, 119 F.3d 1150 (overturning lawyer solicitation limits, where such a harm study was not used in passing the bill, and where the Maryland Attorney General reported — before the bill’s passage — that it did not appear that such harm to consumers was likely); Los Angeles v. Alameda Books, 535 U.S. 425 (2002) (confirming the critical role of harm studies as a hurdle to passing content-based speech limits).

A successful First Amendment challenge against the Bill’s anti-solicitation provisions will expose the District government to substantial attorney’s fees for the prevailing party. 42 U.S.C. § 1988(b); National Black Police Ass’n v. District of Columbia Bd. of Elections & Ethics, 168 F.3d 525, 528 (D.C. Cir. 1999). Fiscal responsibility calls for treading carefully before voting on such a bill.

For all the foregoing reasons, I respectfully urge the deletion from Bill 16-208 of all provisions prohibiting contact with injury victims and prohibiting the use of runners who solicit clients for lawyers. If I can be of further assistance on this matter, I will be delighted to do so.

Respectfully,
Jonathan L. Katz

cc: City Council Members

[1] The next time the Supreme Court considers restrictions on lawyer solicitations, it may well provide even greater First Amendment protections against such restrictions. For instance, four of the nine justices in the Florida Bar v. Went for It  case, 515 U.S. 618 (1995), joined a scathing dissent against the majority. Those four dissenters remain on the Supreme Court, whereas only three justices from the majority in Went for It remain on the court.

Order Granting Motion to Dismiss for Lack of Personal Jurisdiction.

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