Wednesday • August 30, 2006

Attorney General cautions lawyers about contacting families of ComAir 5191 victims

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[Update: See "Is the Kentucky Advertising Commission limiting advertisements about ComAir 5191 consistently?" (posted 8/31/06)]

Kentucky Attorney General Greg Stumbo is cautioning lawyers to respect the privacy of those who lost loved ones in the crash of ComAir Flight 5191 here in Lexington on Sunday.  As reported on the Attorney General's website:

Citing the “Aviation Disaster Family Assistance Act of 1996,” Stumbo warned the legal community that grieving family members are protected from any unsolicited communication for 45 days following their loss.

“It’s not just the right and moral thing to do – it’s the law,” Stumbo said.  “No attorney, or any representative or employee of an attorney, should intrude upon this very private and personal time of mourning.”

The federal law, set out at 49 United States Code Section 1136(g)(2) limits contact by lawyers and imposes a $1000 per day fine for violation:

“Unsolicited communications -- In the event of an accident involving an air carrier…no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.”

Stumbo points out that even after the 45 day Federal waiting period, lawyers must closely follow the Kentucky Rules of Professional Conduct, which forbids direct contact where the lawyer has no prior direct relationship with the prospective client (Kentucky Rules of Professional Conduct, Supreme Court Rule 3.130 (7.09)).  These rules do not apply to contact initiated by victims’ families.

The Attorney General directed the public’s attention to the “Federal Family Assistance Plan for Aviation Disasters,” developed by the National Transportation Safety Board.  “This plan is the basic document for organizing an effective response to this horrific tragedy,” Stumbo explained.  “It details a variety of protections for victims’ families, including designation of a director of family support services and coordination of the emotional care and support of the families during this heartbreaking time.”

The Attorney General’s Office is contacting Kentucky Bar Association representatives to ensure compliance with the law.  Stumbo has also put a link to the Federal Family Assistance Plan for Aviation Disasters on his website (www.ag.ky.gov).

It should be apparent from other posts on this blog that I generally respect the rights of other lawyers to advertise their services as they choose, within the boundaries of the law. That does not mean that I condone the behavior of any lawyer who directly solicits employment from people in their time of grief.

There are both legal and moral dimensions to the issue, as indicated in the Attorney General's press release. 

Where legal restrictions are concerned, the Kentucky Rules of Professional Conduct distinguish between the solicitation of employment and the advertisement of legal services.  "Solicitation" includes such activities as direct "in-person" or "live telephone" contact.  See SCR 3.130(7.09).  By contrast, "advertisments" include newspaper ads, television commercials and web sites whch advertise legal services.  See SCR 3.130(7.05) et seq. The Rules make that distinction because they recognize that direct contact with a prospective client ("solicitation") raises ethical concerns that are distinctly different than the placement of ads in the mass media (the "advertisement of legal services"). Thus, for example, the Rule relating to direct contact, SCR 3.130(7.09), specifically prohibits a lawyer from sending any solicititation for employment to a prospective client who has been involved in an air crash for a period of 30 days after the crash occurs.

The federal statute cited by Attorney General Stumbo ( 49 USC § 1136(g)(2) ) likewise prohibits lawyers from making any "unsoliticited communication" to any relative of a person involved in an aircraft accident for a period of 45 days after the accident. The statute does not define "unsolicitied communication," nor does it distinguish between direct contact and advertisements in mass media.  However, the language of the statute which specifically prohibits a lawyer from making "unsolicited communication" to "a relative of an individual involved in the accident" indicates that it is intended to prohibit direct, uninvited contact with those persons.  That interpretation is consistent with the distinction between the "solicitation" of employment and the "advertisement" of legal services that exists in the rules of most states, including Kentucky.

The moral dimension is, of course, that people should not have to endure direct, unsolicited contact from lawyers who want to assist them with potential legal claims when they are still reeling from the loss of their loved ones.  That's a matter of legal ethics that goes beyond the limitations established by state and federal law.

Some lawyers view the moral issue differently.  They argue that people are entitled to know that there are lawyers available to help them, and that the relatives of crash victims may need to receive help quickly. In my opinion, that does not justify direct, uninvited contact with people during a time of grief, regardless of what the law permits.

To any lawyer who argues that there is no time like the present to contact those people and tell them about their rights, I will simply say this: the Kentucky Rules and the federal statute both permit the lawyer to make direct contact with those people in an appropriate manner, subject to various requirements, after a specified period of respect for their privacy.

[Originally posted on 8/29/30; expanded on 8/30/06]