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Trial lawyers and the insurance industry have never, to say the least, been known for being the best of friends. But an unlikely alliance that blurs traditional battle lines and turns conventional wisdom on its head has arisen in connection with a proposal now pending before the D.C. Council. There, a group of plaintiffs attorneys are supporting legislation sponsored by the insurance lobby — to the detriment of some of their fellow attorneys. This week the council is set to debate a bill that would increase the penalties for insurance fraud, but one amendment in particular has potentially serious ramifications for personal injury attorneys who make their living soliciting victims of traffic accidents. The controversial amendment targets lawyers and others who approach accident victims in an attempt to get their business. The legislation, which was voted out of the Judiciary Committee last month, would ban solicitations by any attorneys and third parties for 21 days after an accident. Attorneys or their agents who contacted potential clients during the 21-day quiet period would face misdemeanor criminal penalties, including fines and jail time. The legislation also would limit access to police reports to those involved in the accident, their attorneys, and the insurance companies. Currently, such information is available to the public for a $2 fee. The entire council is scheduled to debate the White Collar Insurance Fraud Prosecution Enhancement Amendment Act of 2005 on Dec. 6. Supporters of the amendment say legislation is necessary because lawyers are using increasingly aggressive tactics to snare clients, including employing third parties — known as “runners” — to look up accident records and contact victims.
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These runners, according to the bill’s backers, harass victims by flooding them with phone calls, showing up at their homes and accident sites, and even paying them to file false claims. Such actions, they say, denigrate the reputation of trial lawyers and feed the ugly stereotype of the ambulance-chasing lawyer. “This is really about maintaining a professional image,” says Kenneth Trombly, a past president of the Trial Lawyers Association of Metropolitan Washington D.C. (TLA-DC) who spearheaded the effort to crack down on such soliciting. “It is embarrassing.” But critics say the reform effort is just a thinly disguised attempt by a few lawyers to subvert the legal process and weed out competition. Solicitation, they argue, provides a valuable service by informing people of their rights after an accident and helping victims collect what they are owed. More to the point, critics of the pending measure argue that it amounts to a giveaway to insurance companies because without solicitation, many victims will settle claims quickly and for pennies on the dollar. “This is a vulnerable population that does not know or understand their rights,” says David Rees, a personal injury lawyer and one of the bill’s critics. “For a lot of people this is a lifesaver. I can’t tell you how often [people] thanked me for calling because they did not know what to do.” And by the end of last week, support for the amendment, at least as it is currently written, appeared to be waning among some within the trial bar. On Dec. 1 the TLA-DC leadership voted to oppose the current language of the amendment because it criminalizes lawyers’ behavior. This vote came despite the fact that its past president Trombly testified in favor of the measure before the council just a few months earlier. D.C. Council member Phil Mendelson, chairman of the Judiciary Committee, says he endorses the reform, pointing out that most states limit such solicitations. CAR CRASHES AND COLD CALLS Three years ago a taxi driver plowed into the back of Rebecca Howson Dowling’s car on a busy street in Adams Morgan. Hours later, she left the emergency room with a broken wrist and back and neck injuries. All she wanted to do was get some rest, Dowling recalls. But that wasn’t going to happen. By the time she got home there was already a phone message from a lawyer looking to represent her in an insurance claim. The next day, she says, the phone kept right on ringing, with some calls coming as early as 7:30 a.m. “The first day was nuts,” she says, “to the point where I was just yelling at people on the phone.” In just the first day after her accident, Dowling estimates she received about 20 calls from lawyers. A steady stream of solicitations continued for at least a week. One caller, she says, identified himself as the “official District police legal counsel” and claimed he needed her to call him back right away. She says she didn’t and instead reported the calls to the D.C. Metropolitan Police Department. Dowling, however, says the police told her there was nothing they could do because her accident report was public information. Keith Watters, president-elect of the Bar Association of the District of Columbia and co-chair of the TLA-DC’s Anti-Solicitation Committee, says he has heard stories of runners getting in the way of paramedics at accident scenes and tracking down victims in hospital emergency rooms. People start lining up at 5 a.m. at the police stations to see the previous night’s accident reports, he says. “There is no such thing as a do-not-call list for runners,” Watters says. In fact, Washington has some of the most lenient solicitation rules in the country. It is the only jurisdiction that allows lawyers to pay intermediaries to recommend their services to potential clients. Solicitation by lawyers themselves is also perfectly legal. In most states the use of runners is prohibited by the state’s bar association. And at least five states have laws that make the use of runners a misdemeanor. Watters estimates the legislation would affect only about 20 or 30 lawyers. But he says those attorneys represent a disproportionately large number of accident victims, thereby affecting the reputation of the entire personal injury bar. If people need a lawyer after an accident, Watters says, they should not have any problem finding one through television ads or in telephone books. “This is probably the most lawyered city in the country,” he says. “Do you think people would not know how to contact a lawyer if they need one?” Not according to Robert Berkebile, a solo practitioner who admits to using runners. “My clients are not in Georgetown, they are in Southeast and Southwest,” he says. “They are poor and not well educated. They are not the type to pick up a phone book. They are not going to go online to find an attorney.” If there have been complaints about lawyers’ tactics, they haven’t reached the ears of D.C. Bar counsel Wallace “Gene” Shipp Jr. “We would certainly accept complaints about attorneys overreaching,” he says, “but we are hearing nothing.” RUNNERS ON EMPTY The problem of using runners has been an issue for both the insurance industry and the trial bar for several years. The proposed measure outlawing this tactic was included in the mayor’s fraud bill by Lawrence Mirel, then the commissioner of the District’s Department of Insurance, Securities and Banking, as a way to stem insurance fraud. At a public hearing on the bill in July, both Trombly and Watters testified that they supported the amendment on behalf of their respective organizations. The two — along with members of the insurance lobby and the D.C. government’s insurance commission — spoke about the urgent need to crack down on intrusive solicitation. But the trial lawyers believed the bill should go even further. “Our concern wasn’t just fraud claims but the whole process,” Trombly says. In an interview, Mendelson said that “it was clear there was support on all sides of the spectrum.” The D.C. Bar is also taking up the issue by considering changes to ethics rules that would prevent attorneys from paying third parties for bringing in clients. But critics claim Trombly did not have the full support of the TLA-DC when he pushed for a legislative solution. Berkebile and others claim that many lawyers in the 400-member association had no idea legislation was even being considered. They say there was no formal survey of the association’s membership and even some of its leadership were caught unaware. But Trombly says, “The rank-and-file members of our association support this bill.” The TLA-DC leadership’s unease with the language of the amendment stems from the fact that it exposes lawyers to criminal penalties, TLA-DC President Patrick Malone says, but everyone was on board with the ban on solicitation, whether it was by lawyers, their employees, or third parties. The amendment is also under fire from the D.C. chapter of the American Civil Liberties Union, which has sent a letter to the Judiciary Committee expressing its concerns about the constitutionality of the measure. Mendelson says he does not believe there are First Amendment issues at stake, but adds that Charlotte Brookins-Hudson, the council’s general counsel, is looking into whether parts of the bill violate Washington’s home rule charter. THE SILENT TREATMENT The biggest problem opponents have with the proposed 21-day waiting period is that it gives the insurance industry too much of an advantage. First, 21 days is the industry standard for settling insurance claims, and second, if an accident victim suffered soft-tissue damage and delays in seeing a doctor, he might end up with only enough money from the insurance company to cover property damage. Also, it wouldn’t prevent the insurance companies from contacting victims. Berkebile says his clients don’t realize they can be treated by a doctor for free with the payment coming from an insurance settlement later on. “They have no money, and if an insurance company offers them $500, they are going to settle because they cannot pay their bills,” he says. Attorney and bill critic Rees says the reason why some trial lawyers support the amendment is that lawyers who use runners have been more successful in getting clients than those who simply advertise. “This is about telemarketing,” says Rees. “This is a commercial proposition for them. If people are calling the day after the accident, then people who advertise other places are not getting the business.” Trombly and Watters disagree. “If I wanted to stifle the competition,” Trombly says, “I would have my own runners.” Still, Berkebile says that without the ability to solicit clients over the phone, he never would have been able to build up his practice in the first place. Berkebile, who started practicing about two years ago, says he has advertised on the Internet and in the Yellow Pages but has only gotten two clients that way. “If this bill passes, I would probably get two to three new cases a week,” he says, “as opposed to the five to 10 new cases I get now.”


Bethany Broida can be contacted at [email protected].

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