Prosecutors seek to stop solicitation

by Nancy McCarthy
Staff Writer

An attorney assumes a great risk by sending an investigator to interview witnesses to an accident if the attorney doesn't represent a client somehow related to the accident.

And a lawyer who uses an intermediary to make a presentation to any group, such as a group of doctors, containing a promotional message about the lawyer must be cautious that the presentation does not contain any untrue statements.

Two new ethics opinions by the State Bar's Standing Committee on Professional Responsibility and Conduct (COPRAC) both warn of perils in communicating an attorney's availability for employment.

Rule 1-400 of the Rules of Professional Conduct prohibits solicitation of clients, or ambulance chasing.

In several recent disasters, however, some attorneys have sent runners and cappers to the scenes of accidents in an effort to drum up business. Last year, for example, when a plane slammed into an apartment building in Fresno, individuals seeking business for lawyers went to the Red Cross center in an effort to contact victims or their families.

The State Bar's Office of Chief Trial Counsel has created a disaster response team which goes to the accident scene and warns potential clients about improper solicitation. Their goals are two-fold, explains Tracy Genesen, spokeswoman for the office. "We want to both achieve public awareness about lawyer solicitation and deter attorneys from showing up" at accident scenes.

Attorneys from the office went to the site of last month's train derailment in San Bernardino County and to the Los Angeles school attended by children involved in an accident with a garbage truck.

In addition, Genesen said, head prosecutor Judy Johnson is working with district attorneys to target cappers soliciting on behalf of lawyers.

Ethics opinion No. 1995-144 states that if an investigator at the scene of an accident makes the slightest suggestion that a victim contact the investigator's lawyer employer, the lawyer is responsible for solicitation and is in violation of both the Rules of Professional Conduct and the Business & Professions Code.

"Contact by the investigator with the victims is inherently suspect," according to the COPRAC opinion, which is not binding.

"Any victim of an accident - including those emotionally stricken though not physically injured - might be a potential client. Witnesses who may have a legal liability or claims related to the accident are also potential clients and therefore potential targets of prohibited solicitations."

By merely identifying the attorney for whom the investigator works, a solicitation may occur, the opinion states.

Even if the lawyer never represents the individual to whom the communication was directed, he may still commit an ethical violation.

The committee said it envisioned "only the rarest of circumstances in which clientless investigations may serve the legitimate needs of lawyers and their prospective clients."

Another opinion, No. 1995-143, addresses presentations by an intermediary to a group rather than an actual client. In that situation, as well, the committee cautioned, the presentation constitutes a "communication" and the lawyer may be subject to discipline if the speaker makes an untrue statement.

If addressing a group of doctors, for instance, the lawyer may not allow the intermediary to suggest that the physicians will receive any fee for recommending patients to the lawyer. In fact, if a doctor solicits a patient for an attorney, it is considered an impermissible solicitation, the committee said.

Copies of the opinions are available from the bar's Office of Professional Competence, Planning and Development, 100 Van Ness Ave., 28th floor, San Francisco 94102.

The opinions are advisory only.