By Edwin Jakeway
Jakeway Injury Law
I have practiced law over 55 years now. This is a sufficient period to reflect on what I want to believe is still a profession. Our legal system has always been subject to harsh reviews. Most people today like their lawyer, or their brother-in-law who practices law, but are guarded of lawyers in general.
In past years, Bar Ethics prohibited attorney advertising. Even having a shingle too large or a lighted sign was subject to criticism. Bold print in the telephone book was off limits. It could be that I am in the October of my years, and becoming too reflective. The Shapero v Kentucky Bar Association case, 486 U.S. 466 (1988), brought changes not anticipated. It was thought by some that permitting advertising would help young lawyers get started.
Not satisfied with direct mailing, some attorneys have resorted to more aggressive measures. Contact has been made with auto accident victims by people holding themselves out as medical providers or “no-fault helpers,” resulting in referrals to physicians and health care providers outside the community.
I fear EMT personnel, hospital employees and police officers have referred prospective clients expecting financial consideration. Finders or referral fees to non-lawyers are prohibited. (Rule 5.4 of Rules of Professional Conduct.) Hospital patients report frequent contact by attorneys and their representatives.
We all rely on family, friends and former clients for referrals. Michigan’s most recent statute prohibits sending letters to prospective clients for 30 days after a motor vehicle accident (MCLA 750.410b). The general solicitation statute, MCLA 750.410, remains in place.
MCLA 600.919 voids an agreement to pay attorney fees in solicited cases. The Rules of Professional Conduct require lawyers to report violations to the Attorney Grievance Commission (Rule 8.3). We all should report ethical and statutory violations to limit prohibited practices. Personal solicitation of accident victims is not a protected First Amendment right. Ohralik v Ohio State Bar Association, 436 U.S. 447 (1978).
I believe that our State Bar should be more aggressive in discussing what it is doing to enforce the rules. Because the violations and unethical practices arise from some members of the plaintiff’s bar, both the State Bar of Michigan and the Michigan Association for Justice should be outspoken and critical of those practices. It is the conduct of that small faction, now increasing, that contaminates our civil system.
Aggressive behavior by attorneys and their designated agents will result in legislation harmful to victims of injuries and will solely benefit insurance companies.
The offensive conduct of some lawyers and no-fault medical referral companies will result in legislative efforts to limit access to the courts. If the access to our court system is restricted, as some have proposed, people will not become aware of the loss until it is too late. Lawyers must report each violation to the Attorney Grievance Commission and local prosecutors. Until those steps are taken, the unethical practices will continue and increase.
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Edwin W. Jakeway began his practice of law in 1961. He is a graduate of the Detroit College of Law and a trustee emeritus of the Michigan State University College of Law, having served as a trustee and vice president until 1995. He practices exclusively in the area of personal injury law with his sons, Craig and Morgan.
