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Commonwealth of Massachusetts

November 2001

Rules of Engagement

Nancy Kaufman

Mass disasters have brought out the best and the worst in lawyers. Who could forget the spectacle of American lawyers rushing to Bhopal, India, in the wake of poison gas released from the Union Carbide plant? On the other hand, there is the selfless public service of the state bars of New York, Texas, and Louisiana working hard after disasters struck in those states not only to warn the surviving victims and the victims’ families against the influence of corporate or insurance agents seeking a quick settlement of claims but also to educate the public on the importance of choosing counsel carefully to pursue all proper claims for damages.

On September 11, 2001, America was attacked. Over 6,000 lives have been lost, and property valued in the billions of dollars has been destroyed. The further collateral consequences of these fatal attacks have yet to be measured.

On September 14, 2001, the Boston Globe published an article captioned, “Grieving Family Retains a Lawyer.” According to this article, a New York law firm had already been engaged by the husband and children of a woman who died on American Airlines Flight 11. The article quoted another New York lawyer’s prediction that “[t]his will be the largest single lawsuit involving an airline disaster in history” and went on to speculate as to the possible defendants in such a lawsuit.

The immense scope and inconceivable damage wreaked by the attack on September 11, 2001, are calamities beyond imagination. The trauma of the airline crashes was, moreover, compounded by the horrifying images continuously transmitted by all the news networks. It is difficult to imagine that a family losing a loved one in these circumstances could make an informed and dispassionate decision about how to enforce legal rights and remedies within three days after the event.

It may be that the family in the article initiated contact with the firm identified in the article and that no solicitation was involved. Lawyers who solicit professional employment for a fee in Massachusetts must, however, abide by the Massachusetts Rules of Professional Conduct.

Lawyers may not solicit professional employment for a fee by in-person communication. In-person communication includes contacting the proposed client by telephone, through another person, or by electronic or other device. Mass. R. Prof. C. 7.3(d) A lawyer may solicit employment for a fee from a person known to need legal services by written communication to that person, so long as the lawyer retains a copy of the communication for two years. Mass. R. Prof. C. 7.3(c). When a lawyer might do so is addressed by Mass. R. Prof. C. 7.3(b)(1), which provides:

A lawyer shall not solicit professional employment if…the lawyer knows or reasonably should know that the physical, mental, or emotional state of the prospective client is such that there is a substantial potential that the person cannot exercise reasonable judgment in employing a lawyer, provided, however, that this prohibition shall not apply to solicitation not for a fee…

There is no bright line establishing when a surviving victim or a deceased victim’s family is sufficiently composed to exercise reasonable judgment in retaining counsel. In Matter of Anis, 599 A. 2d. 1265 (1992), cert. den. sub nom Anis v. New Jersey Com’n on Attorney Advertising, 504 U.S. 956 (1992), a lawyer was reprimanded for writing a solicitation letter to a father who had just learned the day before that his son had died in the plane crash in Lockerbie, Scotland. After expressing his “deepest sympathy”, Anis advised that the father might have a claim against Pan Am and urged him “to consider our firm to prosecute your case.” Anis thoughtfully added, “P.S. There is no consultation fee.” The New Jersey Supreme Court announced in Anis that discipline would not be imposed “for truthful letters of solicitation sent more than two weeks after such a disaster occurs and loss becomes known.” Id. at 460.

In 1990, Florida amended its disciplinary rules to prohibit written communications to a victim or relative of a victim concerning actions for personal injury or wrongful death arising from an accident or disaster within thirty days after the event. G. Stewart McHenry and his lawyer referral service, “Went For It, Inc.,” challenged this rule in March 1992 on the basis that it violated their First Amendment rights. The case eventually made its way to the United States Supreme Court under the name Florida Bar v. Went Fort It, Inc., 515 U.S. 618 (1995). The Court upheld the rule in a five-to-four decision on the ground that the Florida had a substantial interest in protecting victims or their families from such intrusions and “in preventing the erosion of confidence in the profession that such repeated invasions have engendered.” Id. at 635.

Massachusetts has not defined the length of time a lawyer must wait before soliciting client business in writing following a tragic accident or disaster. In 1996, a lawyer was publicly reprimanded for writing to a seventeen-year-old victim the day after he was seriously injured in an automobile accident. Matter of Holzberg, 12 Mass. Att’y Disc. R. 200 (1996). While the decision cites Anis, it does not refer to or endorse the time period suggested in that decision. MBA Op. No. 97-4 also advises that lawyers should not send business cards to “recent victims of accidents, their relatives, or other persons who have suffered some serious loss or injury” because of the “potential that the person(s) targeted cannot exercise reasonable judgment…”, but the opinion does not specify a particular period of time that should pass. Finally, comment [2] to Mass. R. Prof. C. 7.3 advises that the lawyer consider the “times and circumstances” of the event in question before initiating contact, implicitly acknowledging that these are too variable to establish one period of time as sufficient.

The American Trial Lawyers Association has declared a moratorium on civil lawsuits arising from the tragedy on September 11, 2001, asking that its members work “with Congress and the Administration to help assure unqualified justice and prompt relief for the thousands of innocent victims and their families.” It is unlikely that all legitimate claims will be fully compensated without professional assistance from lawyers. Lawyers have an important role to play in protecting the legal rights of those affected by the terrible events of September 11th, but we should do so without exploiting their grief.

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