Shortly after the crash of Continental Flight 3407 near Buffalo, I wrote that the crash would test New York’s new 30-day anti-solicitation ethics rules. I did a few searches to establish a baseline and chronicled the development of the marketing. The marketing takes several different forms, as I noted after the US Airways splash landing, and includes how attorney ethics can be laundered. I also wrote that some of techniques might afoul of the First Amendment and needed to be modified. The Second Circuit currently has one case on the subject.
And so yesterday I ran a new post on those firms that have started marketing, one with a brand new website and others with Google ads directing people to the firm’s existing site (Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?)). Three firms from Chicago and one from Houston were found to be apparently soliciting in this fashion, as well as one from New York.
Today comes another (hat tip to Patrick from Popehat). If you Google “Flight 3407” you get this ad in the sidebar:
CDE – Aviation Lawyers
Experienced aviation accident and
transportation injury lawyers
So once again we see a firm, this time Clapp, Desjardins & Ely of Washington D.C., apparently using keywords to trigger the ad placement while avoiding a direct reference to the flight in the ad. But the page it brings you to is unambiguous, with this invitation on the home page:
Click for information on the Crash of Continental Express flight 3407.
After clicking the ad, I headed to the new page where, after expressing their sympathies, the lawyers write (/ClappWebSite2%[email protected]):
We are willing to meet with any family affected by this tragedy. Should you wish to set up a meeting, either in person or via a conference call to discuss your legal needs concerning the Continental Express Flight 3407 crash, please call Mike Ely or Doug Desjardins at 202-xxx-xxxx.
In the old days, solicitation took place with direct contact by mail or in person. Then New York altered its ethics rules to include cyber-solicitation, and that also applies to solicitation from from out-of-state law firms. You can read about it at this prior post.
There is also, as I noted yesterday (as had a couple of commenters) a federal prohibition against solicitation.
So it appears that the firms jumping into the advertising game are willing to take the risk of action against their licenses in exchange for acquiring new cases.
I have no doubt that if New York or the feds open ethics investigations, there will be these defenses:
First: Somehow claim that the ad wasn’t a solicitation to victims’s families; and
Second: Even if it is, it is protected by the First Amendment; and
Third: That they weren’t responsible for the ad placement, but that a marketer did it without their knowledge. Turning a blind eye to what is being done in the name of the law firm will no doubt occur.
But as I noted yesterday, when ethics is tied to marketing, and you outsource your marketing, then you have also outsourced your ethics.
Updated: The Philadelphia firm of Messa & Associates has jumped into the cyber-solicitation chase. See the first comment.