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Defense Attorneys' Use of 'Jail Mail' Stirs Debate Over Business Tactics
The Connecticut Law Tribune
Some Connecticut criminal defense lawyers are starting to chase business by sending advertising letters to the newly arrested. Their colleagues are condemning the practice as "sleazy," confusing to clients, and a detriment to the image of lawyers.
But although its top practitioners aren't eager to talk about it, "jail mail" is definitely becoming a fact of legal life in Connecticut. Ethics authorities say it doesn't violate professional ethics rules or Practice Book restrictions on lawyer advertising, if done the right way.
In other states, like Texas and North Carolina, it's not uncommon for a newly arrested citizen to get multiple letters from attorneys angling for business. It's been nicknamed "jail mail" because, if the recipient has yet to make bail, the letter goes to the jailhouse. The practice has not been widely used in Connecticut -- until recently.
Now, says Gerald Klein, a criminal defense lawyer with offices overlooking the state Supreme Court building, "the average person in Hartford who gets arrested for driving while intoxicated would get three or four of these letters."
One of the lawyers who sends them is Frank Canace, of Plantsville, who is also an active police officer, according to his website.
Under a red box that notes "ADVERTISING MATERIAL" the letter begins: "I have learned of your recent arrest and, I would like to take this opportunity to tell you about myself and possibly offer my services to you." Canace describes his police training, which he states has enabled him to become knowledgeable about criminal and constitutional law "as well as police practices and procedures."
While expressly not guaranteeing the outcome of the case, Canace vows, in boldface italic type, "I will charge you a lower fee than any fee you have been quoted by another attorney." He lists a 24-hour emergency consultation number (his cellphone) and offers to meet on nights or weekends. Canace did not, however, respond to three calls for comment.
Another direct mailer is former Windham State's Attorney Mark Solak, who has offices in Hartford, Waterbury and a third location, according to his secretary. Solak, asked about his direct solicitation practices, merely said "no comment," and hung up.
Direct mail pioneer John O'Brien, with offices in Rockville and Manchester, also did not return requests for comment. Both O'Brien and Solak tout "EZ Pay" options.
RULES AND CONFUSION
Assistant Statewide Bar Counsel Kerry J. O'Connell said the guidelines for direct mail advertising are in Practice Book section 2-28A and in Rule 7.2 of the Rules of Professional Conduct. "A lot of people think lawyers can't solicit, but they can if they follow the rules," said O'Connell.
For personal injury and wrongful death matters, there's a 40-day waiting period, to avoid the appearance of ambulance chasing. Lawyers can send solicitations to former or existing clients and not have to file an example of the letter with the bar counsel's office. Letters to unknown prospects need to be filed, and will be held for three months for possible random review. Just because the advertising letter is filed doesn't automatically mean it will be read, let alone judged for ethical compliance, she said.
Bridgeport lawyer Edward Gavin, a former president of the Connecticut Criminal Defense Lawyers Association, said the letters can create problems in several ways.
Bar rules say a solicitation letter is supposed to tell the reader to disregard the letter if the defendant is already represented by another lawyer. But just what entails representation isn't always clear. Gavin says some of his clients have been returning to him intermittently for more than 20 years, but until an appearance is filed in the new case, a former client is fair game -- which Gavin isn't entirely happy about. Secondly, he says the letters he's seen sometimes list the time and place of the prospect's next court appearance, and direct him to call the law office for an appointment.
"Many of the people who get arrested are not very sophisticated people," Gavin noted. The letter can sound like it's from the court as an official directive. "I think a lot of people get snookered into believing they're supposed to go ahead and contact that soliciting lawyer," said Gavin.
Solak's letters say -- correctly -- that he's a former prosecutor. That's led to another kind of confusion, said Klein, the Hartford defense attorney, who had one client who mistakenly thought he was being told he had to pay the prosecutor something.
John Maxwell, another criminal defense lawyer, practices in the Hartford office of Brown, Paindiris & Scott. Maxwell collaborates with senior partner Richard Brown, a well-known criminal defender who works from the firm's Glastonbury office. Maxwell said of the direct mail letters, "People get them within two or three days of their name showing up in the newspaper. I've had plenty of clients get them."
For Connecticut, this method of drumming up legal business has been increasing over the last three years or so. "It may be driven by hard times, but I think the practice is a bit sleazy -- it doesn't really look good," said Tara Knight, of New Haven's Knight & Cerritelli, a former president of the Connecticut Criminal Defense Lawyers Association.
In 2008 and 2009, three advisory opinions were issued by the Statewide Grievance Committee about direct mailings to prospects listed in police arrest logs. Opinion #09-04933 is typical. It approved a letter that began, after the salutation, with the caveat, "If you have already retained a lawyer for this matter, please disregard this letter," and states that fees are "based on ability to pay."
One requirement of ethics Rule 7.3(c) is that the prospective client must be "known to be in need of legal services in a particular matter." Thus, arrest dockets are a valid source, the opinion finds. O'Connell, the assistant bar counsel, said lawyers also have used lists of people facing foreclosure, which satisfies the same "need" requirement.
Criminal defense lawyer Richard Brown said he's observing more aggressive tactics to locate clients, driven by a sluggish economy. "It's been going on for two or three years. In the criminal defense bar we have poachers, people who otherwise are engaged in other areas [of law] they've seen decline, and think they can come and dabble in this particular area, and they do."
Secondly, he said, "is that there is without question a significant price war going on, where lawyers are attempting to undercut other lawyers," he said. This is true, he says, "particularly in DWI cases."
Brown isn't alarmed. "My personal philosophy is, it's America. If you want to go undercut some other lawyer, I don't care, personally. It doesn't mean anything to me. There are plenty of lawyers cheaper than me, and plenty who are more expensive than me. I just charge what I believe to be fair."
By the same token, he says, there is no doubt that "lawyers are becoming more aggressive, and using the letters or other means to suggest to clients that we can charge less. It's done in other areas of professional services. It's the new reality."
New Haven lawyer William Dow, of Jacobs & Dow, isn't keen about the new direct mail approach. He began practicing law in 1968, nine years before the U.S. Supreme Court, in Bates v. State Bar of Arizona, ruled lawyer advertising was constitutionally protected commercial speech.
Dow noted that the issue of lawyers attempting to dig up potential clients from public documents hit the courts in a 2006 Connecticut Supreme Court case that became famous for other reasons. The matter of Clerk of G.A. 7 v. FOIC was started by Russell Collins, a lawyer who had come from Texas to Connecticut. He attempted to use the state's Freedom of Information Act to get the names of new criminal defendants from a court database. Collins was hoping to launch a "jail mail" advertising campaign of his own.
The majority opinion, penned by Justice Peter T. Zarella, ruled the information was not available through an FOIA request.
Infamously, that decision was held up from normal release by then Chief Justice William J. "Tocco" Sullivan, in an attempt to smooth the way for Zarella's pending nomination to succeed Sullivan as chief justice. What began as a helpful gesture blew up into a scandal. Democratic lawmakers viewed Sullivan's action as an obstruction of the process of legislative review of judicial nominees. Ultimately, the case triggered a dramatic and sustained clash between the Legislature and the judicial branch.
So far, the "jail mail" trend hasn't caused legal or ethical difficulties for any of the workaday solos and small-firm lawyers who have been using it. In fact, it's only judicial branch casualty was at the top. As Dow noted, "It certainly got Tocco into trouble."