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In the bad old days, a lawyer with no office but the municipal courthouse phone booth would slither up to a defendant and whisper, “look out pal, the judge will sock it to you unless you have the right lawyer, and that’s me.” Today’s marketing is more sophisticated. Municipal court lawyers comb public databases for the names of speeders and reckless drivers. Then they send solicitation letters that tout their expertise and warn against guilty pleas that could lead to bad-driver points and insurance surcharges. If the firm is lucky, it will get a client worth hundreds of dollars more than the per-person cost of the solicitation. And it’s ethical, as long as the letter conforms to the Rules of Professional Conduct. Gwen Austin, whose New Jersey firm Austin & Solvibile has sent thousands of solicitations to traffic defendants whose names appear in court records, says a well-crafted letter is more than an ad: It’s a service to defendants who don’t know they had rights or are in jeopardy. Her letter includes lengthy excerpts from the state’s motor vehicle code that helps defendants match the accusation to the potential penalty. But the proliferation of these solicitations has drawn the attention of the Supreme Court Committee on Lawyer Advertising because of increased complaints from citizens who receive them, says Samuel Conti, secretary to the committee. The committee is concerned that some of the lawyers are abusing their rights to solicit by using unethical scare tactics or not making it clear enough that the letter is just an ad. The advertising committee plans to spend time discussing various problems associated with the solicitations. One proposed remedy is on the table: requiring that the mandatory word “advertisement” on such letters be two type font points larger than the body of the letter. The letters also are causing unease among regular municipal court practitioners. Those interviewed last week said that even ethical letters could contain misinformation, intrude on recipients’ privacy, frighten them unnecessarily and cross the line into huckstering. Randolph Wolf, who heads a firm in Red Bank, N.J., speaks for many municipal court practitioners. “I hear complaints about these letters all the time,” he says. “It makes us all look bad.” Ann Renaud, a former municipal judge and a partner in that East Brunswick, N.J.’s Ramp & Renaud, knows from personal experience that many lawyers are using the technique. She says 22 letters from lawyers arrived after her daughter got into an accident and was given a ticket. “I think they are intrusive and inappropriate,” she says. SUPREME COURT IMPRIMATUR If drafted properly, though, the letters are legal and ethical. In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the U.S. Supreme Court ruled that states may not categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful letters to potential clients known to face particular legal problems. The recipient of such advertising is not faced with the coercive presence of a trained advocate or the pressure for an immediate yes-or-no answer to the representation offer, but can simply put the letter aside to be considered later, the court reasoned. That doesn’t wipe out states’ power to regulate the form of solicitations. The Florida Bar, which regulates lawyer advertising, gives examples of ethical and non-ethical solicitations on its Web site. New Jersey’s RPC 7.3 deals specifically with personal contacts with prospective clients. But a lawyer who doesn’t read all the rules governing letterheads and communication of services, RPC 7-1 through 7.5, is in danger of sending an unethical solicitation. Lawyers who aren’t sure whether their letters comply can send them to the advertising committee and get feedback on whether the language is problematic. The letters must be labeled as ads, must remind recipients that the lawyer selection process is an important act that requires thought, and must tell recipients that if they find the letter misleading they can report it to the advertising committee. MAKING THE PITCH Putting in caveats is the easy part. The harder part is fashioning a letter that gets the reader’s attention without using scare tactics, promising success, claiming expertise beyond other lawyers’ or engaging in misrepresentation. Austin’s standard letter, which has been reviewed by the committee, seems factual. “It has come to our attention that you recently received a traffic ticket that may require your appearance in Municipal Court,” it begins. “If you plead guilty or the Judge finds you guilty, this is reported to the DMV and can even result in points on your license, insurance surcharges and/or higher insurance premiums, and even suspension of your driving privileges.” Austin’s letter includes a summary of statutory penalties, which helps a recipient decide whether, in fact, such dire consequences are possible, at least when it comes to points and fines. “Before you pay the ticket or go to court, you should be aware of your rights under the law and any defenses you may have,” the letter says. Then there’s the letter sent by Caamano & Gang. The mandatory word “advertisement” appears in small type on the 11th line of the letter. Included is a warning, “It is extremely important that you understand that the police and the State of New Jersey are represented by a seasoned and skilled prosecutor whose job is to make certain you are convicted. He is not your lawyer and he is definitely not there to do you any favors.” The firm also says, “our attorneys include a former Newark Municipal Court judge who puts his experience to work on all cases,” an apparent reference to Fernando Linhares, of counsel to the firm. No one at the firm returned three calls for comment last week. COMPILING THE LISTS How do the firms get the names? As required by state law, the judiciary maintains a court records inquiry system with a database available to anyone who enrolls by posting a $500 deposit. Users pay $1 a minute to search the database from their own computers and can download the names, addresses and offenses of all the people who received traffic summonses in a particular town in a particular month. There is no Internet registry for the system; it must be obtained by enrollment with the Administrative Office of the Courts. Users also can buy CD-ROMs with the information. Austin says she pays an individual, who also works for another firm, to search the database for her. There’s also an Internet company doing business in New Jersey and Pennsylvania, CourtClerk.net, that will handle the entire process from searching the database to mailing the solicitation letters. Scott Nichols, president of the company, says a database search of a particular town that yields, say, 100 summonses will typically yield 60 names because of multiple tickets to single individuals. Of those 60 people, roughly 30 will have received summons for speeding, driving while intoxicated, reckless driving and other offenses worthy of a lawyer’s attention because they result in points and surcharges. “You don’t want to send a letter to someone who has unclear display of license plates,” Nichols says. “If you call an attorney for that, he’s going to say pay the fine.” For these refined lists, Nichols charges 50 cents per name. He also will handle the mailing of the lawyers’ letters, studiously avoiding giving any advice on content. “It’s their job to be completely aware of the ethical requirement,” says Nichols, who is not an attorney.” A lawyer who heads a firm in East Brunswick and does his own searches, H. Scott Aalsberg, says he isn’t making a fortune by getting clients with such mailings. But, Nichols says, “People are making a very comfortable living with this because they are able to focus solely on municipal court work.” He says he realizes as well that the more lawyers who do such solicitations, the greater the competition. That’s why he limits the number of attorneys to whom he sells names in a particular town or area. CHEESY, BUT IT WORKS Six municipal lawyers who advertise in Yellow Pages and Web sites said last week they don’t send letters to traffic offense suspects because it seems to violate the spirit of the principle that lawyers shouldn’t approach people in extremis. David Schwartz of Ocean Township’s Schwartz & Posnock says he is surprised such solicitations are legal. “I thought that if someone had a particular ongoing matter they were not to be solicited,” he says. “I don’t feel you need to pounce on someone who is having a problem,” he says. John Menzel, who has a firm in Point Pleasant, says, “I think it’s cheesy, but it must work.” He says clients have complained to him that they wanted to keep the existence of a traffic ticket private, but were, in effect, outed when the solicitation letter arrived at home. “I wasn’t going to tell my wife,” he quoted a client as saying. “I’m not outraged by it, but I do think it’s an intrusion,” he says. Michael Richmond, of Woodbridge’s Richmond & Burns and co-author of Gann Law Books’ Municipal Court Handbook, says some letters appear to suggest that the sender is the best lawyer a person could hire — without the caveats required by ethics rules. He says he heard of a youngster who kept his ticket private and was thrown out of his house by his parents after they learned of the offense from a lawyer’s letter. Renaud, the former municipal judge in East Brunswick, says many recipients are first-time offenders whose offenses carry the lowest fines and two points. Such targets can end up paying hundreds of dollars to a lawyer without realizing a guilty plea would be a lot cheaper in the long run. Lawyers like Austin who use the technique say, however, that such clients would most likely be told on the phone that they probably don’t need representation. Until they get her ad in the mail, though, they may not know they do have an alternative to pleading guilty. “You are providing a service,” she says. “There are people who don’t know how to get out of the mess they are in,” she says.

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