As something of a follow-up post about the expansion of the existing 30-day prohibition on certain solicitation efforts that the Tennessee Supreme Court has now ordered, it likely is worth noting that the existing 30-day restriction in the ethics rules tied to just disasters and personal injury matters has always itself been somewhat controversial among parts of the Bar. Setting aside any constitutional issues – which many would argue can be overcome for the existing prohibition through the U.S. Supreme Court’s decision in Florida Bar v. Went For It — the unilateral nature of the existing restriction is undeniable. There is no parallel restriction under the ethics rules that prevents those representing potential tortfeasors or insurance carriers from contacting injured persons and making efforts to try to settle their potential claims during that same 30-day period.
However, the existing restrictions were widely believed to be the least that the legislature in our state would impose if the Court did not do so through the attorney ethics rules. If further evidence is needed about our legislature’s willingness to treat issues of attorney advertising as something they can choose to restrict however they see fit, you can take a look at this proposed Senate Bill that has been getting some publicity today in Memphis media. It seems likely that the practical impossibility associated with the idea of subsequent updating of attorney advertisements that the bill would require may be enough for the merits of that aspect of this bill to be revisited and, thus, the constitutional questions may never arise, but only time will tell.