Questions of Professionalism

Posted on Categories Judges & Judicial Process, Legal Ethics, Legal Practice, Legal Scholarship, Legal Writing, Wisconsin Law & Legal System

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I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Over the years, I’ve collected accounts of judges reprimanding lawyers for unprofessional conduct related to research and writing.  This one stands out because the judge went several steps beyond chastising the attorney for poor writing.  The judge

  • hand-wrote comments and corrections on the motion;
  • ordered the attorney to hand-deliver the order personally, along with the marked-up motion, to the client
  • ordered the attorney to read local court rules and the Federal Rules of Civil Procedure, and
  • ordered the attorney to file with the court a certificate of compliance when he had completed these tasks.

(A note to my first-year students:   I know that getting back marked-up copies of your memos this week is painful.  It would be more painful to have a judge mark-up your writing and then order you to show it to your client.)

I wonder how the client feels in this situation.  I worry about how difficult it is for layperson clients to know which lawyers are worthy of their trust and worth the fees.   Often clients choose among lawyers on the basis of advertising, which leads into the second professionalism discussion that has stuck with me this week, lawyer solicitation letters to individuals involved in car accidents.

In New Jersey, an attorney organization composed primarily of personal injury attorneys requested that the state completely prohibit attorney solicitation letters to accident victims, except in cases where an attorney already had a business relationship or close personal relationship with the person involved in the accident.  Ultimately, the New Jersey Supreme Court Professional Responsibility Rules Committee recommended a waiting period of 30-days for such letters.

Wisconsin has no ban on solicitation letters and no waiting period.  When an individual in Wisconsin is involved in a car accident for which an accident report is generated, that individual will likely receive a solicitation letter from an attorney, even when the accident report states that there were no injuries.  This attorney advertising does not violate Wisconsin ethical rules on advertising, SCR 20:7.1 and 20:7.2, as long as the solicitation letter is not false or misleading and does not create unjustified expectations of the results the attorney can achieve.

My question is whether this type of solicitation via letter, though not unethical, is somehow unprofessional.  I’ve certainly heard from individuals who believe the solicitation tarnishes the reputation of the legal profession.   Some believe the solicitation may manipulate people in a vulnerable position.  On the other hand, individuals involved in car accidents may benefit from immediate assistance from a lawyer because they are in a vulnerable position and need to take steps to protect their rights.

This dilemma is not new.  In reading about client solicitation, I ran across these words from Justice Blackmun:

In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.  Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Bates v. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).   I also learned that Abraham Lincoln solicited three different potential clients  by letter in a railroad taxation dispute in Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291 (1855).  These potential clients had adverse interests.  (If you want to read more about Lincoln’s solicitation letters in that case, I suggest Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal And Ethical Perspective, 65 Marq. L. Rev. 547 (1982)).

Is there something unprofessional about lawyer solicitation letters after accidents?  I wonder what other Wisconsin lawyers think.

(Editor’s note: The nice photo of a mosaic representation of Justice, inside the Wisconsin State Capitol, was found here.)

2 thoughts on “Questions of Professionalism”

  1. Following Bates, Wisconsin was one of the first state to remove all significant impediments to advertising and solicitation (other than a prohibition of fraud). Apparently the decision was made early on that policing solicitation was just not worth the effort. Iowa, in contrast, took the other approach and for years tried to keep lawyer advertising to a minimum.

    My impression is that while some Wisconsin lawyers grumble about the ethics of aggressive advertising and solicitation, most have accepted the state’s approach.

  2. I have often wondered about this in the context of criminal defense advertisment. Like personal injury clients, criminal defense clients can benefit from immediate contact from a lawyer. However unlike personal injury clients, criminal cilents, by the time the person has actually been charged with the crime (which is when a defense attorney who chooses to advertise would typically learn about the charges) the damage has been done. The interrogation has occured, the search of the person, home or vehicle has been conducted, and the police reports have been generated.

    A person’s rights are protected, because if they show up at court unrepresented they are instructed by the court that it would be useful to retain a lawyer. If the person cannot afford a lawyer, they can seek representation through the public defender’s office. If the person makes too much money for public defender representation they will often be eligible for a court appoitned attorney.

    A personal injury client would not have a scheduled court appearance and would not be advised of the importance of legal representation absent advertisement by the lawyer.

    What is bothersome and, in my opinion unprofessional, is direct solicitation of an incarcerated defendant by an attorney. There are ethical rules against the practice, yet it frequently occurs; often when the incarcerated person is facing a high profile case. People in this situation are extremely vulnerable and confused. Moreover, many of these people may already have legal representation. This raises the additional ethical question of contacting a represented defendant.

    If there were to be any area of attorney advertisement that warrants attention it should be the questionable practice of directly contacting incarcerated defendants.

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