Bob Clifford writes about Attorneys Not Soliciting Crash Victims

Without a doubt, the crash of US Airways Flight 1549 could have been much worse.  Any time a plane takes off and is in the air for five minutes, reaching speeds of more than 200 miles per hour, and then suddenly has to land, it’s a recipe for disaster.

The passengers on the plane called the situation scary, surreal, the hand of God.  Some thought they were going to die.  Others will have nightmares for the rest of their lives.  Perhaps some may never want to fly again.

Emotional distress is difficult to quantify, but is doesn’t make it unreal.  The stories of tearful people clinging to rescuers, pleading for them not to let go, is not to be taken lightly.

As passengers and their families decide what the next medical course of action is for them, some may turn to the courts for solution.

Just a few days before the crash, the federal government was touting that for the first time since the dawn of the Jet Age, two consecutive years had passed without a single airline passenger death in a U.S. carrier crash.  That record thankfully is still intact. 

But those who did lose their livers or who have been horrifically injured in previous plane crashes are the unsung heroes in making the lives of those who fly safer.

It is these people who have paid the ultimate price in forcing the airline industry and governmental officials to dig deeper into finding out what can and did go wrong in previous airline disasters. 

Although some may point to government rules, technology improvements, and better training – and those factors certainly are a testament to the safety records – I think that the courage of those who brought an action against the responsible parties, forcing answers from those who were not anxious to admit liability or fault, have created a watchdog group of sorts for those who continue to fly.

They have vested lawyers with the power to act on their behalf – lawyers who have taken the time to find the experts who know how to get answers; lawyers who are not afraid to ask the hard questions; lawyers who know how to comfort those while they wait sometimes years for answers.

One must try to sort the lawyers who are trying to make a name for themselves from those who are truly trying to help the victims work through the events in their lives.

After the recent crash of Flight 1549 in the Hudson River, bloggers immediately noticed that lawyers were soliciting potential clients on the Internet.

It is one thing to inform people that they have rights and deserve answers to questions in a governmental investigative process in which they are not allowed to participate.  But it is another issue to violate ethical rules by specifically targeting those who are still recuperating from what may be the closest call to death in their lives.

The federal government has placed a 90-day moratorium on directly contacting victims of air crashes.  Why 90 days?  Why not never?  There is no need for lawyers to contact these people, because it is difficult for people in air-line disasters to discern a good lawyer from one who has no experience.

New York recently enacted rules after the 2003 Staten Island Ferry disaster that killed 11 people and injured 71.  Some attorneys had placed ads in the Staten Island Advance newspaper on the day of the accident itself and while rescue efforts were still underway.

The New York rules specifically prohibit solicitation by an attorney within 30 days of a mass disaster.  But here’s the real rub: Do ads on the Internet constitute “unsolicited communication ... to an individual injured in the incident or to a family member or legal representative of such an individual”? 

Many law firms regularly advertise on the Internet so that people can be aware of what they do.  In the event that legal services are necessary, this kind of information may be helpful because it can be done at the choice and leisure of the person at the computer.

But after the Flight 1549 crash, some law firms specifically targeted victims of the crash.  One blogger claimed, “We Have a Winner” in the “Lawyer Soliciting Airline Victim Department.”  A New York law firm asked victims of Flight 1549 to contact it.

“Were you or a loved one aboard US Airways Flight 1549?  Are you concerned about your legal rights?  Contact our firm to understand how to protect yourself and to seek damages for injuries or trauma sustained during the crash.”

That ad reportedly appeared just one day after the crash. I wrote about attorney advertising a year ago in my column for Chicago Lawyer (“Lawyer Advertising Should be Accurate,” 1/08).  There I pointed out that, like New York, Illinois has disciplinary rules governing soliciting potential clients, and the state’s Attorney Registration and Disciplinary Commission is mindful of those who break these rules and will take appropriate disciplinary action where warranted.

There is no better time than now to stress the importance for lawyers to present constructive, informative advertising in an objective, accurate way for consumers and businesses.  An informed consumer is of utmost importance, but the integrity of the bar also is at stake.