No soliciting?
That’s the ticket

Has this ever happened to you? You’re involved in a motor vehicle accident, or you receive a traffic ticket. Or you may have been charged with some criminal offense. Whatever the case, you are summoned to appear in court. Several days later, you start receiving solicitation letters from lawyers.

Steven LandfieldThe letters come in an envelope marked “advertisement,” but they are unlike most junk mail that comes to your house. It also contains a large disclosure along the bottom, making it clear that it is advertising from a lawyer.

Then perhaps it reads something like “Court records show that you have been issued a summons.” It goes on to tell you the importance of having an attorney to assist you in court, and the possible consequences of not having one, such as the assessment of points on your license and an increase in your auto insurance rates. The letters seem to know a surprising amount of information about you and your personal yet apparently very public problem.

And that’s the rub. Attorneys or commercial services which specialize in obtaining this information for the lawyers have made a business out of solicitation — a nice way of saying “ambulance chasing.”

For instance, CourtClerk.net is in the business of mining the lists of people issued tickets or against whom lawsuits or complaints are filed. They sell the information to lawyers. They will even do the solicitation letters themselves — for a fee.

Some call this free speech; however, many consider it a frightening and annoying profitization of public information — which they wish were not public.

It can feel discomforting and intrusive. While state law protects the privacy of your Social Security number, your driver’s license, and credit card information, it seems that everything else is fair game — and big business.

The New Jersey Supreme Court, which regulates the conduct of lawyers, has permitted these letters, through its Committee on Attorney Advertising, which has issued opinions regarding the content of lawyer solicitation letters.

Nonetheless, several New Jersey legislators have decided that this practice is offensive. If the court will not put restrictions on such solicitations, they say, then the Legislature should.

Sen. Joseph Vitale (D-Dist. 19) has sponsored a bill, S-2524, that declares that attorney solicitation letters are an invasion of an individual’s privacy, reflecting poorly on the legal profession and increasing the public’s mistrust and suspicion of lawyers.

The bill would prohibit attorneys from sending any written communication soliciting professional employment to any person whose name, address, or other personal information was obtained through a public record, such as a police report, accident report, or court record.

This bill does not affect general solicitation through advertising not directed to any specific person.

Vitale’s measure would classify violations of the law as a third-degree crime, which is punishable by imprisonment of a term of three to five years and a fine of up to $15,000. Pretty tough stuff.

The measure has merit at a time when one of our biggest concerns is the protection of our individual privacy. There is already too much public information available, leading to the prevalence of identity theft.

And yet there are serious constitutional questions posed by this legislation.

Courts have long ago established that lawyer solicitation letters are a permissible form of advertising.

The U.S. Supreme Court ruled as far back as 1988 that lawyer advertising is constitutionally protected commercial speech, striking down a Kentucky regulation which prohibited lawyers from soliciting by mail. The high court held that while states may prohibit false or misleading lawyer advertising, they cannot impose a straight prohibition on all advertising by mail.

The bill, if it makes it into law, is likely to face an immediate constitutional challenge on jurisdictional grounds and as a violation of the separation of powers. It has been long established that the power to regulate the legal profession is that of the Supreme Court and not the Legislature.

And there are arguments to be made that proper lawyer solicitation serves an important consumer function, informing people of their legal rights in important matters of potentially great consequence.

The ability to access public records is also beneficial in cases where the public arguably really should have a right to know — such as when elected officials are arrested and charged with crimes, such as drunken driving.

Still, lawyer solicitation has become big business. The Supreme Court may permit it as commercial free speech, but to most of us it is intrusive, annoying, and unsettling. I’m an adult. If I want to hire an attorney or consult with one, I can make that decision for myself.

I’m rooting for Sen. Vitale.

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