Attorneys have ethical rules about how clients can be solicited to become clients of a law firm. Attorneys cannot directly solicit hurricane damage claims. Attorneys cannot have third parties do it for them as well. So, while attorneys can advertise for clients to call their law offices, attorneys cannot call or knock on the doors of people that are non-clients asking them to sign up as clients. They cannot pay or provide incentives to third parties to get around these rules. All attorneys know they can face disciplinary proceedings and potentially be disbarred for such misconduct. In some states, these actions are criminal. The lawyers and those third parties can face jail.
In an extraordinary filing yesterday,1 an insurance defense attorney filed a memorandum in federal court which outlined how a third party solicited him on behalf of a law firm for hurricane damage. The specific allegations of alleged wrongful solicitation were as follows:
At 6:58 p.m. EST on Wednesday, January 25, 2023, undersigned counsel received an unsolicited text message from a phone number identified as ‘+52 56 3977 9530’. The unsolicited text message states as follows:
You have Hurricane Ian and Ida storm compensation pending, fill out this form pi4q.com/1PG2
At no point did undersigned counsel take any steps to request this text message from any person or entity. In fact, undersigned counsel could not believe that he received this text message after having alerted the Louisiana Bar about MMA’s improper text message solicitation on August 3, 2022. The unsolicited text message did not identify the sender and did not identify any lawyer or any law firm. There was no location of practice identified, nor was there a Louisiana State Bar Association lawyer advertising filing number supplied. Rather, there was a promise of money made by filling out a certain form at the website that was enabled by the link ‘pi4q.com/1PG’.
Undersigned counsel clicked on the link which takes you to the website: www.HurricaneDamageLawsuit.com. On the first page of this website, there is no mention of a law firm or attorney involved. Rather there is a series of questions presented to viewer with under the tab ‘See if you Qualify for Compensation Get a FREE Case Evaluation’….
In order to determine who sent the unsolicited text message, undersigned counsel submitted identifying information via the website late in the evening of January 25, 2023. The next morning at 8:47 a.m. EST, a person who identified himself as ‘Arnold’ called undersigned counsel from phone number (346) 245-6143. The conversation lasted thirteen minutes and twenty-eight seconds (13:28). Arnold indicated that he was from an organization called Strategic Litigation Partners and proceeded to ask numerous questions similar to that set forth in the website queries above. Arnold had a difficult command of the English language yet also asked whether undersigned counsel was married; what was the best time and best way to communicate; and, indicated that if the law firm attempted to contact me unsuccessfully three times that I would lose my opportunity to work with them. Arnold made it very clear, at least five times, that he was working on behalf of the ‘Velawcity’ law firm located in Texas.
During this conversation Arnold informed undersigned counsel that he would be sending an email and instructed me to open the email while we were still on the phone. The email came from an address ‘Hurricane-Ida-Velawcity-MMA@slplegal.com’. The email was received during the telephone conversation at 8:55 a.m. EST. The email states as follows:
Thank you for your interest in the Hurricane / Storm Litigation. This email has been sent by the Intake Team Member you are speaking with. Please take a moment to review your agreement while you are on the call with us so we can answer any questions and get started on your case.
Please click on the link below to sign your agreement. Once it is completed you will receive a welcome email with more information. Questions? (409) 683-9069 or Hurricane-Ida-Velawcity-MMA@slplegal.com.
Strategic Litigation Partners, LP 21324 Provincial Blvd.
Katy, Texas 774504
As can be seen by the plain text of the agreement, the email was sent during the phone call and undersigned counsel was asked to ‘please click on the link below to sign your agreement’. Arnold encouraged undersigned counsel to click on the link. When the link was clicked, a screen pops up indicating ‘Your document is ready to sign!’ This electronic correspondence asks the potential client to follow three simple steps in order to set up the signing mechanism for the agreement. The next step in the process instructs the reader ‘Draw your signature’ and ‘Draw your initial:’ Once the reader clicks on the ‘Continue’ button, the reader is provided with a MMA Attorney Employment Contract with instructions to ‘Click Here to Begin Signing’. At no point in this process was anybody from MMA involved or identified. Upon viewing the contract, undersigned counsel even asked Arnold why was MMA on the contract when Arnold previously stated that he was calling on behalf of the Velawcity law firm. Arnold insisted that he was working on behalf of Velawcity and was unfamiliar with MMA.
An astute reader may ask: “Chip, the solicitation started out as a text message. Can lawyers solicit via text?” Each state Bar has rules for this, and those specific rules have to be followed. A number of states allow text advertising so long as other rules are followed. For example, the Florida Bar stated:
‘We found that in fact that text messaging is not prohibited in person solicitation and that they are instead a form of written communications such as that are the same as any other written communications and must comply with [Bar] Rule 4-7.8(b),’ Schwait said. ‘We permit emailing we permit [paper] mailing and other types of advertising, and our committee found after listening to the applicant. . . that they have a new method going forward that is permissible.’
The texts, he said, will comply with all Bar rules, including that the first line of the text will proclaim the communication is advertising, and if targeted it will contain the disclaimer that if the recipient already has an attorney he or she should ignore the text, and will disclose how the law firm got the recipient’s name.
The firm will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if that is something the recipient would pay for under the recipient’s mobile phone plan.
I am not certain about specific Louisiana Bar rules regarding text advertising.
What seemed so strange to me was the third party encouraging the signing of a contract where no lawyer from the law firm ever spoke with or reviewed the matter before having the client sign a contract with the law firm. The third-party advertised and then obtained a signed attorney contract for a fee, and the law firm did nothing other than hire the third party to produce new clients. This is a lot different than a third party generating “leads” of potential clients for a law firm, and the lawyers then follow up. Some states allow this form of marketing.
The allegations made by an insurance defense attorney are one side of the story, and there will be “another side to the story.” However, in Sunday’s post, Louisiana Department of Insurance Accuses Texas-Based Law Firm of Fraud and Unfair Trade Practices, I made the following remark:
The Louisiana Department of Insurance has taken the extraordinary step of filing an administrative action against a Texas-based law firm. I have been working in the first-party insurance claims business for over forty years. I have never seen anything like this.
I have never seen anything like this, either. In this case, a law firm never talks with a potential client and never sizes up a case on its merits before signing up the new client through a third-party advertising firm.
I will wait to read the response from the law firm. Maybe I will learn from soon-to-be filed responses that this is ethically permissible. The Louisiana insurance defense attorney does not think so because he has asked for sanctions in excess of $13 million from the law firm soliciting through texts and third parties.
Thought For The Day
People have entire relationships via text message now, but I am not partial to texting. I need context, nuance and the warmth and tone that can only come from a human voice.