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Opinion #16. Letter Soliciting Personal Injury Case
Issued by the Professional Ethics Commission
Date Issued: October 15, 1980
Question
The Grievance Commission has been asked by a lawyer if it would be permissible under the Maine Bar Rules for that lawyer to mail a letter soliciting employment, as follows:
(letterhead)
Dear___________________
I understand that your________________ has recently sustained injuries in an accident. It has been my experience that many people are unaware that they may be entitled to compensation for their injuries even in situations such as automobile accidents where it appears that the person seeking compensation was at fault or where it appears that no one was at fault.
I am attempting now to concentrate my practice in the area of cases involving serious personal injuries or death and probate (settling the affairs of persons who have died). I am attempting this concentration in hopes that it will better allow me to serve the needs of clients who have suffered serious personal injuries or who are the heirs or representatives of persons who have died.
Pursuant to the Maine Bar Rules, Rule 3.9, I am not allowed to make any unwarranted suggestions or promises of benefits or to contact you under circumstances which create a risk of undue influence. If, however, after reviewing my letter and giving careful consideration to the possibility that there may be some right to compensation for the injuries suffered in the recent accident, you wish to contact me or another attorney to check into this matter further feel free to do so.
Should you choose to contact me, you should be aware that it is my practice not to charge for an initial office interview for the purpose of evaluating whether there may be a potential claim. You should also be aware that the most common types of fee arrangements which I enter into in cases involving serious injuries or death are what are known as contingent fees, in which my fee is based upon a percentage of the amount of compensation recovered for the injured party, or a fee based on an hourly rate. In handling cases on an hourly rate, I simply charge an agreed rate per hour billed monthly to the client. By requirement of the probate courts, all probate cases are handled on an hourly rate.[1]
In the event that you and the injured party wish to discuss the possibility of securing some compensation for the injuries with me, simply call my secretary and arrange an appointment for a time which is mutually convenient.
Sincerely yours,
Opinion
Maine Bar Rule 3.9 governs and regulates advertising and solicitation by Maine lawyers. Because the lawyer?s letter referred to above is intended to be sent to an individual and pertains to a singular situation involving personal injury, the propriety of the lawyer?s conduct in sending the letter is governed by subsection (f) of that Rule which prescribes the standards by which lawyer solicitation must be measured. Maine Bar Rule 3.9(f) provides:
(f) Recommendation or Solicitation of Employment.
(1) A lawyer shall not solicit employment on behalf of himself or any lawyer affiliated with him through any form of personal contact:
(i) By using any statement, claim, or device that would violate this rule if part of a public communication;
(ii) By using any form of duress or intimidation, unwarranted suggestions or promises of benefits, or engaging in deceptive, vexatious, or harassing conduct; or
(iii) When the circumstances create an appreciable risk of undue influence by the lawyer or ill‑considered action by the person being solicited. Without limitation, such circumstances will be deemed to exist as to the person solicited if he is in the custody of a law enforcement agency or under treatment in a hospital, convalescent facility, or nursing home, or if his mental faculties are impaired in any way or for any reason. Notwithstanding the foregoing, such circumstances shall be deemed not to exist when a lawyer is discussing employment with any person who has, without solicitation by the lawyer or anyone acting for him, sought the lawyer?s advice regarding employment of a lawyer.
(2) A lawyer shall not compensate, or give anything of value to, a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client, except that he may pay for public communication permitted by these rules and may pay the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.
(3) A lawyer shall not knowingly assist or authorize any other person or organization to engage in conduct that would violate this rule if engaged in by the lawyer personally, nor shall a lawyer accept employment when he knows, or it is obvious, that the person who seeks his services does so as a result of conduct prohibited under this rule.
It is the opinion of the Commission that the letter must be treated as an indirect solicitation of the accident victim even though it is addressed to a relative. Since it is the accident victim who has the claim in which the lawyer is interested, it is obvious that the letter is intended to be communicated to him by the recipient. This conclusion is reinforced by the last paragraph of the letter which states that if the addressee or ?the injured party? wish to discuss the potential claim with the letter writer, he would be glad to oblige.
It cannot be said, however, that it would be a per se violation of the rule for the lawyer to send the letter in question. Indeed, the letter appears to be carefully drafted with a view to complying with the standards contained in Rule 3.9(f). The letter itself, however, tells only half the story. Since, as indicated above, the letter must be taken as having been directed to the accident victim, the rule would be violated if it were received by him while under treatment in a hospital or under the other circumstances set forth in subsection (1)(iii).[2]
It is conceivable that a lawyer could have made inquiry to satisfy himself that the accident victim had been discharged from the hospital and that the circumstances did not otherwise ?create an appreciable risk of undue influence by the lawyer or ill‑considered action by the person being solicited.? The Commission is of the opinion that the rule would not be violated if a lawyer had taken such steps to assure that the circumstances deemed in the rule to constitute a violation did not in fact exist even if, by some mischance, as in the case of a sudden relapse by the accident victim, the letter was nevertheless received by him while back in the hospital. The Commission believes that where, despite the fact that reasonable precautions are taken and good faith is exercised by the lawyer, a solicitation inadvertently occurs under circumstances described in subsection iii, the policy of the rule will be satisfied by simply barring the lawyer from accepting the case if he should later be requested to undertake it.
Footnotes
[1] The Commission is doubtful as to the factual accuracy of this statement.
[2] The Commission takes this opportunity to observe that the prohibition of Rule 3.9(f)(1)(iii) is framed in terms of ?appreciable risk of undue influence by the lawyer or ill‑considered action by the person being solicited.? Explicit proof or findings of harm or injury is immaterial. See Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912 (1978).
