I had it in mind that I might write a little something about the Pennsylvania lawsuit against the Morgan & Morgan firm over lawyer advertising issues, but Karen Rubin and the fine folks at The Law for Lawyers Today beat me to that punch with a nice piece at their site that you can read at this link.
So, instead, but still staying on the general theme of lawyer advertising issues, I’m going to focus just a bit on a story coming out of what is often thought of as “ground-zero” in the U.S. when it comes to the battle over lawyer advertising issues — Florida. It is a tale of a lawyer who is being suspended for one year over conduct involving solicitation of a client. (Should you want to, you can read the full per curiam opinion of the Florida Supreme Court in Florida Bar v. Dopazo here.)
The opinion mostly focuses on the question of what was the right amount of punishment, deciding to increase the suspension from the 60 days that was recommended to a full one-year suspension. That isn’t my interest for today. My interest for today is to use this case as a reminder of a few things in the context of larger issues that are going on in the world of lawyer advertising (and, in particular, the APRL effort to persuade the ABA to revise the Model Rules to streamline the restrictions on both general advertising and solicitation).
Those who study questions of legal ethics or attorney advertising or both will remember that the only U.S. Supreme Court case to uphold a restriction on attorney advertising efforts as constitutional is Florida Bar v. Went For It. The restriction upheld there was the 30-day off limits concept for soliciting representation by mail from folks affected by disaster or traumatic personal injury in any fashion.
Dopazo’s conduct not only ran afoul of prohibitions on in-person solicitation but was well within that kind of 30-day off-limits period and would have been prohibited in any form or fashion.
In March 2007, days after her son suffered traumatic brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center by Dopazo, who successfully solicited her to become a client of his for a fee. There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf.
No one who is out there actively advocating for revisions to the ethics rules addressing lawyer advertising and solicitation is pushing a rule revision that would permit this kind of in-person solicitation in a hospital even if a jurisdiction did not also have some version of a 30-day off-limits period. Even those of us who question the fairness of 30-day off limits provisions because they only prohibit communications from one side of things -_ the side seeking to provide representation — are in favor of restrictions on in-person solicitation by lawyers of strangers.
Those of us who are actively advocating for changes though are very much in favor of trying to not have these sort of situations — which can be adequately addressed by simple prohibitions — drive the discourse to try to justify more expansive restrictions on commercial speech. Among the many reasons for that are the kinds of unnecessary and unneeded restrictions that can come to pass because of expansions of such concepts.
Using my own state as an example, over time our rule imposing a version of the 30-day off limits provision has now been expanded to prevent lawyers from sending letters to strangers offering to provide representation in a divorce matter within 30 days of the filing of a divorce. I’ve written in the past about the problems I have with that concept (if you click through that link which gives you an electronic/pdf-ish version of The Memphis Lawyer magazine from 2015, you’ll need to go to pages 14-15 to read the column).
So, unquestionably, this Florida lawyer’s situation is one that the ethics rules ought to prohibit. But the fact that such conduct was engaged in does not provide a basis for saying that the rules aren’t in need of reform.
(N.B. You might be asking yourself why in the world a lawyer is being disciplined in 2017 for misconduct that happened in 2007. The opinion elaborates that it was not the target of the solicitation who complained about Dopazo but rather that the Florida Bar only learned of the incident in 2011 as a result of the findings of an FBI investigation of this lawyer over alleged payments to non-lawyers for a client recruitment scheme involving medical clinics. Interestingly, the delay in the prosecution of the case from 2011 to 2015 was, in fact, taken into account as a mitigating factor when concluding that the appropriate discipline was a one-year suspension.)