The Future of Law: Now Even Sleazier!

While I may be a bit on the extreme side in opposition to sleazy lawyer marketing, no one can argue that the proprietor of LexBlog, Kevin O’Keefe, supports the notion that lawyers should be “Thought Leaders” and get their ideas out there to market themselves.  So when Kevin hits the wall on sleaze, you know it’s bad.  And it’s bad.

In the race to who can be the sleaziest lawyers in the country, Ohio personal injury lawyers are now soliciting injury victims via text messages. The lawyers are getting cell phone numbers from police reports.

As reported by Mark Williams of the Columbus Dispatch, the Ohio Supreme Court approved text advertising in an advisory opinion earlier this year.

What are they doing? They’re sending texts to the victims and families of tragedies, “offering” to chat with them, tell them their rights, and, ahem, help them to get the most possible MONEY, MONEY, MONEY!!!

In the nasty old days, we had a phrase that captured such conduct. It was called “ambulance chasing,” and it was frowned upon.  But then, that’s a concern for dinosaurs, those old-time lawyers who didn’t appreciate that technology has changed everything.  The Future of Law has a different way of expressing it.

The court believes text solicitations reflect changing technology. It’s just “another way for lawyers to communicate with prospective clients,” per a court spokesperson.

See how much better that sounds? It’s benign, even helpful.  As explained in the Columbus Dispatch,

Its Board of Commissioners on Grievances and Discipline issued an advisory opinion in May that said lawyers are permitted to use text messages to solicit business, assuming they comply with other rules that regulate attorney advertising. Lawyers sending the messages are required to pick up all the costs of the texting.

“The opinion tries to set out the parameters so that everyone plays by the same rules,” said Rick Dove, the board’s secretary.

By “everyone,” it appears that they are saying that if all lawyers are allowed to be equally sleazy, then no lawyer is left behind.  Not included in the “everyone,” however, are the people who will receive these advertising texts. They don’t count. But not to worry, the Board of Commissioners has them covered, as the lawyers have to pick up the costs of texting. How, as Kevin asks, they will send the victims their 17 cents has yet to be explained.

Yet, the court says this is good. Lawyers aren’t trying to push their way into the lives of people who have just suffered tragedy. They’re just communicating. What’s wrong with communicating? Isn’t communicating a wonderful thing?

Imagine a father visiting his daughter in the hospital the day after a serious accident and getting text messages from a lawyer with links to a website with pictures of cars rolled over in a ditch, trucks hitting cars, victims being loaded into ambulances, and x-rays.

But, but, but, the Ohio Supreme Court says it’s okay.  They say it’s just the way technology has changed the world, and lawyers should hop on board before they miss the train.  If the court says it’s fine, who are we to question?

This raises an issue that may be more troubling than sleazy lawyers who would engage in such offensive conduct.  So the court says it’s cool. Does that suggest that the Ohio Supreme Court has no clue what it’s approving, that it has bought into the dulcet tones of marketing lawyers who just want to help people?  Or does it suggest that the need for lawyers to make money trumps all considerations of decency and dignity?

Part of this may be a language problem, where conduct that had been historically understood to be shameful is now couched in language that makes it appear helpful, even benevolent.  After all, no one wants the victim of tragedy to be deceived or ignore their rights.  There are lawyers out there ready, willing and able to help them. They just want to help, to protect the vulnerable victims at a terrible moment in their lives. What’s wrong with that?

Much of the “discussion” these days is just a variation on marketing-speak, how to make disgraceful conduct sound like anything other than what it is.  Recharacterize sleaze and it comes off sounding as if lawyers chasing ambulances are great humanitarians.

But at some point isn’t there a limit to what is tasteful? Isn’t there a threshold our profession ought to maintain? We are lawyers, and our reputation isn’t getting any better.

Follow this advancement of technology argument and we’ll soon have lawyers talking out of drones flying over car accidents.

To say this is less than tasteful is, to my curmudgeon mind, inadequate.  There are plenty of lawyer advertisements that won’t win any “tastefulness” contests, not to mention plenty that violate most normal folks’ notion of honesty.  No, this goes beyond tasteless.  This is patently offensive, and gross, unsolicited, unwanted intrusion into the lives of the victims of tragedy and their families.

But as long as it uses technology, it must be good, because tech is the future of law. Everybody says so, even the Ohio Supreme Court.

28 comments on “The Future of Law: Now Even Sleazier!

  1. Mark Dwyer

    The most tasteless ad I ever saw was low-tech, and led the ambulance. It was at the old Yankee Stadium, in the mens’ room. Framed directly above my urinal, at eye level, was an ad from a Long Island firm announcing that it specialized in DWI cases.

    1. BM

      I have zero problem with the urinal ad. In fact, better yet, put up their rates so that a drunk guy thinks twice. The text message vulture thing is just horrible though. Screw those guys.

    2. Dan

      I knew a guy who had the same ad at Shea Stadium. Only advertising I ever saw him do. He was pretty much a gentleman in court.

  2. Wrongway

    how very stereo typical.. but I have to agree.. LOL

    Ambulance chasing in the digital age..

    By the way, the only reason I read & commented, was cuz I loved the title of the post..

    W-W

  3. Larry Port

    I don’t understand this, but I guess that’s the point. Isn’t solicitation just solicitation? What difference does it make if you chase a victim with a horse, car, phone call, or text message?

    I guess that’s the point. This is absurd.

      1. Carl H

        No, there’s nothing special about “texting” (verbing weirds language…) you don’t get. It’s very commonplace across the pond. I intermittently receive texts reading: “Been injured? Not your fault? Call us on XXX to see if you have a claim.”

        Much more common once CFA (Conditional Fee Agreements) [aka “No Win, No Fee] became legal.

        Same thing with the banks over here who illegally sold payment protection insurance on loans/credit cards/mortgages — every claim management company and their two dogs got their hands on any list of numbers they could obtain and sent out mass messages.

    1. Josh King

      Not all solicitation is the same. As SCOTUS has pointed out more than once, only certain types of attorney solicitation – those involving the presence of trained advocate, where there is pressure for a yes/no answer – can be prohibited. Text messaging may be tasteless, but it’s a form of written solicitation, and not any different from a coercion perspective than a letter or email.

      1. SHG Post author

        It makes me very sad that you are good with this. But then, I wish I could say I’m surprised.

        And SCOTUS has made clear that commercial speech is subject to time, place and manner restrictions. You probably forgot about that.

        1. Josh King

          Scott, your respect for the constitution and disdain for over-regulation has a blind spot when it comes to lawyer advertising. Consider your recent post on the offense to the 6th amendment that would result from the bar imposing standards on capital defense qualifications. Why no defense for the 1st amendment against similarly well-intentioned regulation?

          1. SHG Post author

            Easy-peasy. Commercial speech is categorically not entitled to strict scrutiny, but to intermediate scrutiny and time, place and manner restriction. No comparison. I’m kinda surprised you made such a poor analogy.

            1. Josh King

              Nope. Time, place and manner regulation applies to all forms of speech. The level of scrutiny applied just relates to the relative height of the barrier the state has to cross. You’re advocating here for the type of regulation that the Supreme Court has plainly found in the past to be unconstitutional (even with the lower burden of the commercial speech doctrine applied).

            2. SHG Post author

              Come on. You’re not seriously going to make me go through First Amendment 101, are you? And you know whenever you toss up one of those Supreme Court opinions with your peculiar interpretation that no one else in the world agrees with, I’m just going to blast it, so why do it? This is fine for Lawyernomics, where no one in the room has a clue what the law is, but not here.

      1. Josh King

        Larry, the answer is that it is OK (legally) to tweet someone who got in an accident. Doesn’t make it not sleazy, doesn’t make it effective, but it’s within a lawyer’s first amendment rights. With the caveat that a few states prohibit ANY communication directly to accident victims for 14-30 days post-accident.

        1. SHG Post author

          And they can prohibit that why? All together now: Because commercial speech is categorically not entitled to strict scrutiny, but to intermediate scrutiny and time, place and manner restriction.

  4. Daniel Partain

    This opinion is horrid. This ruling proves one of the truism from my law school professor to be true, which is that a legal education sharpens the mind by narrowing it.

    1. SHG Post author

      I have no issue with commercial speech being a categorical exception to strict scrutiny, and subject to rational basis regulation. It crosses a doctrinal line. If anything, the biggest problem has been the inadequacy of remedies to stop marketers from forcing their way into people’s lives.

  5. Pingback: Text Messaging Solicitation | Socially Awkward

  6. Michael

    I would find your position much more persuasive if you applied the same level of disdain, or “any level” for that matter, toward the insurance companies and their adjuster/investigators, but you don’t mention a word. Insurance companies possess numerous ‘adverse interests’ toward the person injured in the crash, yet they call every number and take as many recorded statements as possible, as soon as possible. They even go to the emergency room to take statements. Numerous bad faith lawsuits illustrate the major insurance efforts to “put on the boxing gloves” with a claim despite marketing “good hands.”

    You talk of commercial speech, why do you only look at one side of the equation? “Unwanted intrusion into their life”, isn’t that exactly what the person who negligently injured the victim did? In the context of a motor vehicle crash, the victim must then deal with an insurance company with adverse interests – how is that ‘not’ an unwanted intrusion into their life?

    1. SHG Post author

      Your “complaint” reflects a common misperception, that every post has to excoriate every bogeyman hated by every reader. The reason this post doesn’t mention insurance companies is that it’s not about insurance companies. I know, that angers you because you hate insurance companies (and desperately want cases with good liability and damages, because that’s how you make money). So if the post is critical of your side, but doesn’t beat up your enemy, it makes you angry.

      So what if I’m a sleazy scumbag, they’re sleazier scumbags too, and you suck because you didn’t write what I want you to write.

      But the part that is more interesting is your pathologically narcissistic notion that anyone, anywhere, ever, gives a flying shit whether you find this persuasive or not. Aren’t you just the center of the universe.

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