New Jersey lawyers and accident victims alike will be interested to know that the state may soon implement a 30-day waiting period before attorneys may contact accident victims or their families to offer legal services, whether or not the injuries are serious.
The proposed change would be made to Rule of Professional Conduct 7.3(a)(4), and would expand a ban in effect since 1997 that prohibits lawyers from soliciting victims of a specific mass disaster event within 30 days of that event. The new rule would include any “event causing personal injury or death,” car accidents and slip-and-falls alike. There would be an exception to the rule for lawyers who have a “family, close personal, or prior professional relationship” with a victim.
The proposed expansion of the rule was initiated by the New Jersey Association for Justice (NJAJ), which asked the Supreme Court’s Committee on Attorney Advertising for total ban on direct solicitation of accident victims, absent a personal or family relationship. Because of First Amendment concerns, the committee suggested limiting the ban to 30 days. It disfavored the existing-relationship exception, since the concern underlying the ban — that an accident victim or family member might not be in the best mental or emotional state to evaluate a lawyer solicitation — would apply equally if the lawyer was known to the victim or family.
The matter then went to the Professional Responsibility Rules Committee, where the Trial Attorneys of New Jersey weighed in. TANJ asked for a complete ban, not limited to 30 days and without an existing-relationship exception, that would prohibit contact with potential clients of all types, including people charged with traffic offenses.
The PRRC rejected a complete ban as vulnerable to a free speech challenge under the U.S. Constitution, noting no other jurisdiction has adopted such a stricture, while 13 states impose a waiting period for sending solicitation letters pertaining to personal injury, wrongful death or an accident or disaster.
"A limited duration ban may sufficiently address the concerns identified by NJAJ and TANJ," the panel said. "Such a temporary restriction is narrowly drawn and promotes a real and substantial interest, namely, protecting the ‘privacy and tranquility’ of individuals from intrusion during a period of trauma and grief." -Mary Pat Gallagher, New Jersey Law Journal
The committee also felt that the exception for lawyers who had a personal or professional relationship with the victims allowed for the ability to conduct prompt investigations without a similar violation of privacy.
This proposal is now open for public comment until Sept. 4. If enacted, it will hold attorneys to a more professional standard of conduct. Some attorneys have enough professionalism to know better, but others need to be forced to behave professionally.