When The Bell Has Rung, The ‘Sharks’ Will Come

The following is a guest post made by Paul D. Anderson.  Anderson is a third-year law student at the University of Missouri-Kansas City. He is the creator/editor of NFLconcussionlitigation.com. You can follow him on twitter @PaulD_Anderson to stay up-to-date on the concussion litigation front.

We’ve all seen the annoying commercials, “BAD DRUG?!” call Pulaski & Middleman for a free consultation so you can learn about your rights. Anytime a potential mass tort or consumer class action arises, you will see law firms employing their PR campaigns in an attempt to entice clients. Ethically, it is permitted, to a certain extent. Historically, advertising by a lawyer was frowned upon, and many lawyers still share the sentiment that the best way to attract clients is through a solid reputation.

The Supreme Court in Bates v. State Bar of Arizona addressed the constitutionality of attorney advertising. The case made its way to the Supreme Court after two lawyers were suspended for advertising in a local newspaper. The suspended lawyers challenged the State Bar of Arizona’s ban on advertising, arguing, among other things, that it stifled an individual’s First Amendment right to free speech.

The Court ruled in favor of advertising and held that it provides a societal benefit by promoting informed and reliable decision-making when it comes to choosing an attorney. The Court, although finding this protected free speech, left it to the states to regulate attorney advertising. Thus, advertising is ok so long as it is not deceptive or misleading.

The following year, the Supreme Court addressed the issue of attorney solicitation in Ohralik v. Ohio State Bar Ass’n. The Ohio Code of Professional Responsibility included a provision that barred lawyers from in-person solicitation. The offending Ohio lawyer personally contacted two accident victims and offered to represent them on a contingency-fee basis. The Court upheld the provision and attempted to distinguish between overreaching attorneys soliciting for pecuniary gain versus lawyers doing it for other reasons.

Each state has adopted some form of the ABA Model Rules of Professional Responsibility that’s aimed at regulating attorney conduct. As Darren Heitner highlighted in his prior post at Sports Agent Blog, Rule 7.3 attempts to codify Ohralik’s holding: “A lawyer shall not…solicit…a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain….”

Due to the explosion of concussion-related lawsuits filed against the NFL, lawyers throughout the country are seeking former players to join the concussion lawsuits. The majority of advertising that has been used is, for the most part, within the ethical boundaries of the Model Rules. But let’s take a look at the advertising campaigns being employed.

The Locks Law Firm, in conjunction with the Mitnick Law Firm, has taken the lead in its representation of former players. Although the Firm didn’t file its first concussion-related lawsuit until mid-January, it has already contracted with over 250 former players. Much of this likely has to do with the creation of playerinjury.com and the hiring of the Star Group, a marketing and PR firm.

Playerinjury.com provides a seamless way to join the lawsuits. It includes a questionnaire for former NFL players to fill out and then requests if the prospective client wants to sign a retainer agreement. This impersonal method of contracting has led several former players to be named in multiple lawsuits. For example, on davepear.com, a post was created reminding players not to sign up with more than one law firm. In the comments section, former player, Council Rudolph, stated, “I signed with two law firms only because the first one never let me know if they had received my paper work after three calls to them and no returned calls 6 months later.”

In addition to playerinjury.com, the Star Group has engaged in a marketing campaign that delivers press releases to various media outlets each time the Locks/Mitnick Law Firm files a lawsuit. Likewise, Craig Mitnick, with the assistance of the Star Group, created a video discussing the allegations of the lawsuits. The Star Group has requested various blogs and media outlets to promote the video on their respective websites.

Next, by entering a simple Google search, “NFL concussions,” you will instantly see at least two advertisements directed at former players. The first, from playerinjury.com, which directs you to the website and asks you to fill out the questionnaire. The second advertisement is from NFLheadinjurylawsuits.com, and the Kyros Law Firm. The website claims that “We represent NFL players with health concerns.” However, according to my records, the Kyros Law Firm is not a named lawyer in any of the complaints filed. This assertion could qualify as being “deceptive” and in violation of Model Rule 7.1, which prohibits misleading communication.

Finally, as reported by Darren Heitner, Billy Conaty may have violated Model Rule 7.3 by emailing former players, requesting that they contact him to join the concussion lawsuits.

The ‘sharks’ have started to swarm, and one can only hope that if they continue to advertise, they do it within the ethical limits that they swore to at the time they became a lawyer. Advertising is indeed a helpful and informative service, but lawyers and the public should keep others accountable when they cross the line between advertising and unethical solicitation. Which side of the line the above advertising campaigns fall on is an open question.

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