Attack of the Frank Galvins: Ambulance Chasing in Montecito

Remember Frank Galvin from Sidney Lumet’s 1982 film, The Verdict? Paul Newman played Galvin, an ambulance-chasing attorney who reads the obituaries to get clients. When we first meet Galvin in the movie, he is bribing funeral directors to let him pass his business cards to the bereaved.

Galvin’s ghosts have been trolling for business in Montecito since the January mudslides. They have bombarded residents with telephone calls pressuring them to join one of the numerous class-action and mass-tort lawsuits that were filed even before residents could return home from the evacuation.

One of my neighbors in Glen Oaks, who lost his home, has been harassed by a lawyer who calls him almost every other day. This lawyer tells my neighbor that he must sue right away or he risks waiving his claims. Nonsense. Residents have six months from the date of injury to file an administrative claim against a government agency for personal injury or wrongful death, and a year for real property damage. The time limit to sue other defendants is two years for personal injury and three years for damage to real estate.

Some lawyers have “parachuted” into Montecito from places as far away as Texas or Louisiana. They say they are here to “investigate,” but really they are trying to sign up as many mudslide victims as quickly as possible – without any concern for potential conflicts of interest between clients with opposing goals – so they can create a bandwagon psychology and use the victims as pawns to obtain quick settlements.

Solicitation, the gentler term for ambulance chasing, has long been prohibited because it is fraught with risks of undue influence, intimidation, and over-reaching, especially for physically and emotionally distressed victims recovering from a major disaster.

My mentor 30 years ago was professor Geoffrey Hazard, who struggled to upgrade the integrity of the legal profession. He wrote the modern Model Rules of Professional Conduct for the American Bar Association (ABA). As he told it, the prohibition on solicitation dates back to medieval England. (The old word, still in use, is “barratry.”) Solicitation was believed to “stir up” unnecessary litigation, which was a crime in England since at least the 14th century.

In Colonial America, when many people represented themselves in court, many colonies prohibited lawyers from making “any kind of reward or profit directly or indirectly” for representing clients. The result was a black market for legal representation, where lawyers actively solicited business and were condemned by contemporaries such as John Adams for fomenting lawsuits.

Direct solicitation by lawyers remained commonplace through most of the 19th century, until it was curbed by State Bar Association regulations.

In a 1905 speech, President Theodore Roosevelt rebuked attorney misconduct, and the ABA adopted the 1908 Ethical Canons, which stated, ” [S]olicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relations, is unprofessional.” Today, this rule might be considered classist or even a violation of the right of free speech.

California Rule or Professional Conduct 7.3 states, “A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain ….”

In a 1978 case, the United States Supreme Court upheld the prohibition on direct client solicitation.

An Ohio lawyer had contacted the parents of an 18-year-old driver injured in a car accident and signed her up with a contingency fee agreement. (The lawyer gets a percentage of the recovery.) This Galvin-ish fellow then approached a passenger at her home on the day she was released from the hospital and secured another contingency fee agreement.

Both clients later fired the attorney, so he sued them for breach of contract and settled for part of the driver’s insurance money. The clients filed complaints with the Ohio State Bar Association and the attorney was indefinitely suspended.

The case went to the United States Supreme Court, which held: “[t]he solicitation of business by a lawyer [poses] a significant potential for harm to the prospective client.” The court warned that “in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.” 

The California State Bar has enforced its rules against solicitation for the same reason. It even prohibits lawyers from participating in mass disaster victim Internet chat rooms because the lawyer’s conduct is intrusive and even coercive – “visitors to the chat room are inhibited from making a reasonable judgment about retaining [an attorney] because of their physical, emotional, or mental state.”

The rules against solicitation discussed above bar some of the over-aggressive efforts by lawyers to sign up vulnerable mudslide victims in Montecito. The lawyers sometime falsely warn that if victims and relatives fail to take immediate action, they will lose their legal rights to compensation. 

The Frank Galvins who say that you are running out of time to sue are more desperate than their prospective clients. Heal first. There will be plenty of time to litigate. For those who have already signed up with a lawyer through improper solicitation, California law (Business and Professions Code section 6154) says that any contract secured by an attorney through improper solicitation may be void.

Attorneys have a special duty of loyalty to their clients, and the vast majority are careful to adhere to the profession’s ethical standards. With some limitations, legal advertising is allowed and, indeed, provides a service to the community. But clients should be aware of their own emotional and economic vulnerabilities and take care in moving forward.

This is the fifth in a series of articles about the law and the Montecito mudslides. You can read the first four articles on montecitojournal.net, volume 24, issues 4-7, or email blum@blumcollins.com.