Hello. My brother was injured in a fall at a store in Massachusetts and the thing ended up in a local small newspaper. Three weeks later he got a letter from an attorney in MA asking if he was in need of a lawyer. Is that kind of thing legal in Massachusetts? It seems a little weird. Thanks.
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The Editor, Mark Bernardin, is an attorney living in MA. Please send your suggestions or comments to: TheEditor@malawforum.com
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Can MA lawyers solicit injury victims as clients
The issue is controlled,or is supposed to be controlled, by the Massachusetts Rules of Professional Conduct ("Mass. R. Prof. C."). The one bright line on this issue is that a lawyer cannot solicit a client for a fee by "in-person communication." That includes telephone calls, talking directly to the injured person or a relative or friend of the injured person. See Mass. R. Prof. C. 7.3(d)
However, an attorney can solicit employment from a person who is known to need legal services, such as the victim of an accident like your brother, by written communication, such as a letter. However, the attorney is required to keep a copy of the letter for two years. Mass. R. Prof. C. 7.3(c). The big question is how long a lawyer should wait before attempting to solicit business from an injury victim. Mass. R. Prof. C. 7.3(b)(1) states:
A lawyer shall not solicit professional employment if…the lawyer knows or reasonably should know that the physical, mental, or emotional state of the prospective client is such that there is a substantial potential that the person cannot exercise reasonable judgment in employing a lawyer, provided, however, that this prohibition shall not apply to solicitation not for a fee[.]
There is no Massachusetts case law that spells out exactly how long an attorney should wait before contacting a victim or his family. Courts in other states have adopted such rules, sometimes finding that a lawyer should wait at least two weeks. In one Massachusetts case, an attorney was sanctioned for sending a letter to a 17 year old accident victim the day after the accident. Other opinions by the MA Bar Association and the comments to the Mass R. Prof. C. urge attorneys not to send letters or business cards to “recent victims of accidents, their relatives, or other persons who have suffered some serious loss or injury” and encourage attorneys to consider the circumstances of the accident before making contact, but, again, no specific guidance is given as to how soon is too soon.
I don't suppose it really matters. In my view, if a person is injured and believes he needs to hire a personal injury attorney, he should take steps to research his options and hire the lawyer that he thinks will do the best job. Frankly, if an attorney is sending out letters to injury victims, he probably has too much time on his hands. I would encourage your brother to look elsewhere. Good luck.