The following links and commentaries were written circa 1999 for Overlawyered.com.
Chapter 1 of your editor’s The Litigation Explosion (1991), unfortunately not online, tells the story of how in the 1970s the mood in elite legal circles changed: client-chasing by lawyers, long considered a serious ethical breach, began to be viewed less unfavorably as litigation itself came to be seen as socially positive rather than destructive. The shift culminated in decisions by the U.S. Supreme Court according Constitutional protection to most lawyer advertising and some solicitation.
Solicitation: some extreme cases
Among cases mentioned in The Litigation Explosion are those where lawyers’ agents posed as a priest to mingle among grieving families after an air crash, and as Red Cross workers to dig out and sign up survivors after a store collapse. (Even in today’s much-relaxed climate, these sorts of practices still expose attorneys to punishment if they can be proved.) Ken Dornstein’s book Accidentally on Purpose reports on how personal injury operators set up a supposed religious charity, the “Friends of the Friendless”, whose real function was to secure them access to patients in the giant Los Angeles County Medical Center; “techniques included pressing an unconscious patient’s inked thumb to a legal retainer and threatening those who said no with deportation”.
This September 1998 Cincinnati Enquirer article reports on a case where a lawyer was accused of soliciting a dead man.
Lawyer promotion on the Web:
Client-chasing lawyers pioneered spam in the notorious 1994 “green card lawyers” episode, in which an Arizona law firm posted an ad to several thousand Usenet newsgroups offering immigration services; the fury among Netizens went on for months. This account is by David Loundy in the Chicago Daily Law Bulletin.
Two articles still worth a look, though written at a time when web technology was in its infancy, are “Pushing the Advertising Envelope” by T.K. Reid (State Bar of Georgia) and Mark Hankins, “Ambulance Chasers on the Internet: Regulation of Attorney Web Pages” from the Spring 1996 Journal of Technology Law and Policy (U. of Fla. Law School). Hankins writes that “the Web is unfortunately already home to undignified attorney advertising, including a DUI attorney who sponsors a ‘drunk browsing test’ inviting users to perform the tongue-in-cheek computer equivalent of a roadside sobriety test”. (That link is gone, however.) Reid reported, “In an informal poll I did of ten attorneys owning sites on the Web, I inquired as to what steps they had taken to insure that their page complied with their State Bar’s rules for advertising. To my great surprise several responded that they did not consider their sites to constitute advertising, and therefore had done nothing. Instead of advertising their services as an attorney, they maintained that they were acting in another role – that of a publisher of free information.”
Which brings us to “Ethics Spotlight: Attorney Malpractice for Web Site Content” by Laura W. Morgan, part of the Divorce.Net site. Morgan looks at the question whether lawyers might be liable for offering bad advice on their websites which visitors rely on to their detriment. The general answer is no, because law-firm websites are usually well plastered with disclaimers saying, “this isn’t real advice and don’t even think of relying on it”. Fair enough, except that the same lawyers often aren’t so willing to respect other people’s attempts to disclaim liability.
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